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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LARRY MIKELL,
Court of Appeals No. A-14044
Appellant, Trial Court No. 3AN-21-04909 CI
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2803 - April 11, 2025
Appeal from the Superior Court, Third Judicial District,
Anchorage, Jack R. McKenna, Judge.
Appearances: Larry Mikell, in propria persona, Wasilla,
Appellant. Thomas C. Mooney-Myers, Assistant Attorney
General, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell,
Judges.
Judge ALLARD.
Larry Mikell was convicted, pursuant to a plea agreement, of second-
degree murder and sentenced to 65 years to serve.1 In 2019, the Alaska Parole Board
1 Mikell v. State , 2001 WL 81795, at *1 (Alaska App. Jan. 31, 2001) (unpublished).
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denied Mikell discretionary parole and ruled that he could not reapply for discretionary
parole for ten years. Mikell filed an application for post-conviction relief challenging
that decision. The superior court dismissed the application in response to the State's
motion for summary disposition. Mikell now appeals that dismissal. We note that
Mikell waived his right to counsel and proceeded pro se in the superior court
proceedings, and he has chosen to remain pro se for this appeal.
Mikell raises three claims on appeal. First, Mikell argues that the superior
court's interpretation and application of AS 33.16.100(a)(4) (a factor that the Board
must find before granting discretionary parole) was legally incorrect. Second, Mikell
argues that AS 33.16.100(h) (a provision that permits the Board to delay a second parole
hearing) is legally inapplicable to the facts of his case. Third, Mikell argues that the
superior court erred by affirming as not arbitrary the Board's requirement that Mikell
serve ten more years before reapplying for parole.
For the reasons explained in this decision, we reject the first two claims.
However, we conclude that a remand to the Board is required so that the Board may
clarify and, if appropriate, reconsider its ten-year set-off as well as provide guidance to
Mikell regarding what programming he should complete to address the Board's
concerns.
Background facts and proceedings
In 1998, sixteen-year-old Larry Mikell shot a cab driver in the head during
an attempted robbery, killing him.2 Mikell was convicted, pursuant to a plea agreement,
2 Id.
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3
of second-degree murder and sentenced to 65 years to serve. This Court affirmed
4
Mikell's sentence on direct appeal.
After serving one-third of his sentence, Mikell applied for discretionary
parole.5 On October 24, 2019, the Board convened, considered Mikell's application,
and denied parole. The recording of the parole hearing is not included in the record of
this case.6 But the Board's subsequent letter to Mikell explaining its decision is
contained in the record. In this letter, the Board stated that it denied discretionary parole
because releasing Mikell "would diminish the seriousness of the offense" under
AS 33.16.100(a)(4), noting "the severity of [his] crime and how much time is enough
time when a life is lost." The Board also informed Mikell that he must wait ten years
before reapplying for discretionary parole.
Mikell moved for reconsideration of the Board's decision. In a supporting
memorandum, Mikell argued, inter alia, that the Board's interpretation of
AS 33.16.100(a)(4) violated separation of powers principles, and that the Board
7
inadequately explained the basis for its denial under AS 33.16.130(c).
3 Id.
4 Id. at *1-2.
5 See former AS 33.16.090(a) (1998) & former AS 33.16.100(d) (1998).
6 Because Mikell was pro se , the superior court should have informed him how to
obtain and file the record of the parole hearing prior to ruling on Mikell's post-conviction
relief application, if the court did not do so. See Larson v. State, Dep't of Corrs. , 284 P.3d
1, 8 (Alaska 2012) (explaining that "the superior court must 'inform a pro se litigant of the
proper procedure for the action he or she is obviously attempting to accomplish'" (quoting
Capolicchio v. Levy, 194 P.3d 373, 378 (Alaska 2008))). However, we conclude that the
absence of the record has not prejudiced Mikell on appeal because he is raising only legal
arguments with regard to his first two claims and we are remanding on his third claim.
7 AS 33.16.130(c) ("[T]he [B]oard shall state the reasons for the denial [of parole],
identify all of the factors considered relevant to the denial, and provide a written plan for
addressing all of the factors relevant to the denial."); see also Frank v. State, 97 P.3d 86,
90 (Alaska App. 2004) (holding that "the Board must describe its reasons [for denial] in
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In a second letter responding to Mikell's request for reconsideration, the
Board stated that it reviewed Mikell's "entire file," including his "discretionary parole
report," "sentencing documents," "the written information provided to [it] prior to the
[parole] hearing," and the parole hearing itself. The Board ultimately declined to
reconsider its prior decision. The second letter reiterated that releasing Mikell would
diminish the seriousness of his crime under AS 33.16.100(a)(4), noting the following
circumstances of his offense and its aftermath: the offense was "unprovoked,"
"senseless," and "callous"; Mikell "knowingly fir[ed], at close range, a deadly shot to
the [victim's] head"; he showed "no remorse whatsoever"; and his behaviors after the
crime evidenced a "disregard for [his] fellow man, [the victim's] family, the community
at large and the laws of society." The second letter also provided a new rationale for
denying parole: the Board's uncertainty that Mikell could "live and remain at liberty
without violating the conditions imposed by the Board."
Mikell filed a pro se application for post-conviction relief challenging the
Board's decision. Mikell argued, inter alia, that the Board's reasoning and conclusion
under AS 33.16.100(a)(4) was erroneous, and that the Board's order requiring him to
serve ten more years before reapplying for parole was both arbitrary and inadequately
explained under AS 33.16.130(c).
The State moved for summary disposition of Mikell's application, arguing
that the Board acted within its discretion when it denied Mikell's application for
discretionary parole. The State also argued that the Board acted within its "enormous
discretion" when it prohibited Mikell from reapplying for parole for ten years. The
superior court agreed and issued an order granting the State's motion.
Regarding the Board's explanation for why Mikell did not satisfy
AS 33.16.100(a)(4), the court noted that the Board "emphasized the specific facts of
sufficient detail that inmates can understand in what respects they have fallen short . . . so
that they can prepare more satisfactory future applications for parole").
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Mikell's offense and the callousness to human life that he initially displayed." And
regarding the corrective guidance the Board provided Mikell, the court noted that the
Board "g[ave] Mikell guidance on what he needs to do to alleviate the Board's concerns,
namely to serve more time in custody." The court noted, however, that the Board had
not identified which programs would be most likely to help with Mikell's rehabilitation
and, therefore, the Board did not provide sufficient guidance to Mikell for any future
parole applications. The court nevertheless concluded that these deficiencies did not
prejudice Mikell because it concluded that the Board had provided adequate guidance
with regard to AS 33.16.100(a)(4) - release of the prisoner on parole would "diminish
the seriousness of the crime" - by requiring Mikell to serve ten more years.
This appeal followed.
The Parole Board did not legally misinterpret AS 33.16.100(a)(4)
Prisoners who are eligible for discretionary parole under the terms of their
sentence become eligible to apply for discretionary parole after serving a statutorily-
required portion of their sentence.8 After an eligible prisoner applies for discretionary
parole, the Board considers the application.9 Under AS 33.16.100(a), the Board may
grant discretionary parole to an eligible prisoner if it determines a "reasonable
probability exists" that
(1) the prisoner will live and remain at liberty without
violating any laws or conditions imposed by the board;
(2) the prisoner's rehabilitation and reintegration into
society will be furthered by release on parole;
(3) the prisoner will not pose a threat of harm to the
public if released on parole; and
8 See AS 33.16.090.
9 AS 33.16.130.
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(4) release of the prisoner on parole would not diminish
the seriousness of the crime.[10]
If the Board finds that all four of these criteria are met, it may - but is not required to
11
- grant parole.
On appeal, Mikell challenges the Board's legal interpretation and
application of AS 33.16.100(a)(4). More specifically, Mikell argues that the Board
erred in its analysis of this factor because it looked to the specific circumstances of the
second-degree murder he committed. Instead, Mikell contends that by requiring inmates
to serve a portion of their sentence before becoming eligible for discretionary parole,
the legislature has already established that the (a)(4) factor was met. That is, Mikell
contends that the legislature has already determined that paroling him when he first
became eligible would not diminish the seriousness of the crime as a matter of law.
Mikell's interpretation of AS 33.16.100(a)(4) is directly at odds with this
Court's recent decision in Stoneking v. State.12 In Stoneking, we were called upon to
interpret the proper meaning of AS 33.16.100(a)(4). After Stoneking served the
requisite portion of his sentence for first-degree murder, he applied for discretionary
parole. 13 The Board denied Stoneking's application, finding, inter alia, that he did not
meet the release criterion in AS 33.16.100(a)(4). 14 In its decision letter, the Board
15
provided specific details about the aggravated circumstances of Stoneking's offense.
10 AS 33.16.100(a).
11 See id.; Stefano v. Dep't of Corrs., 539 P.3d 497, 504 (Alaska 2023).
12 Stoneking v. State, ___ P.3d ___, 2025 WL 940243 (Alaska App. Mar. 28, 2025).
13 Id. at *3.
14 Id. at *6.
15 Id. at *5-6.
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However, the Board also made generalized comments that its job was to determine
16
"how much time is enough time" to serve for murder.
We held that the Board's comment about "how much time is enough time"
was a misapplication of AS 33.16.100(a)(4).17 We noted that the legislature, not the
18
Board, is empowered to determine the correct penalty for a given category of offense.
Thus, the Board may not deny discretionary parole based on its personal views about
the length of time a prisoner should serve for a given category of offense.19 However,
the Board may consider "significantly aggravated or particularly egregious"
circumstances of a prisoner's crime when assessing whether release on discretionary
parole would "engender disrespect for the law or be incompatible with societal
20
norms."
Accordingly, we reject Mikell's argument on appeal that it was legal error
for the Board to consider the specific circumstances of his crime when determining his
eligibility for discretionary parole under AS 33.16.100(a)(4).
16 Id. at *6.
17 Id. at *11.
18 Id. at *9-10.
19 Id. at *10-11; see also King v. N.Y. State Div. of Parole, 598 N.Y.S.2d 245, 251
(N.Y. App. Div. 1993), aff'd, 632 N.E.2d 1277 (N.Y. 1994) ("The role of the Parole Board
is not to resentence [the] petitioner according to the personal opinions of its members as to
the appropriate penalty for murder, but to determine whether, as of this moment, given all
the relevant statutory factors, [the petitioner] should be released.").
20 Stoneking, 2025 WL 940243, at *11.
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The Parole Board did not err by applying AS 33.16.100(h) to Mikell's
case
Mikell next argues that the statutory provision permitting the Board to
delay second and subsequent discretionary parole hearings, AS 33.16.100(h), is legally
inapplicable to his case. Alaska Statute 33.16.100(h) provides:
If the board considers an application for discretionary parole
and denies parole because the prisoner does not meet the
standards in (a) or (g) of this section, the board may make
the prisoner ineligible for further consideration of
discretionary parole or require that additional time be served
before the prisoner is again eligible for consideration for
discretionary parole.[21]
Mikell's case falls squarely within this provision. After serving one-third
of his sentence, Mikell applied for discretionary parole. The Board held a parole
hearing, denied parole because Mikell did not meet the criteria in AS 33.16.100(a), and
concluded that Mikell must wait ten years before reapplying.
On appeal, Mikell argues that AS 33.16.100(h) does not apply to his case
because he claims that he met the requirements of AS 33.16.100(a) as a matter of law.
Because we disagree that Mikell has met these requirements as a matter of law, we
reject this claim of error.
A remand is required so that the Parole Board can address the ten-year
set-off and provide proper guidance to Mikell regarding future
programming
Mikell next argues that the Board's requirement that he serve ten more
years before reapplying for discretionary parole was an abuse of discretion because it
was unduly arbitrary. In support, Mikell notes that the Board did not explain why it
chose ten years, and the Board did not appear to use any objective criteria to reach this
number.
21 AS 33.16.100(h).
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We agree that a remand for clarification and, if appropriate,
reconsideration of the ten-year set-off is required. On remand, the Board should also
address the deficiencies in its corrective guidance to Mikell that the superior court
identified.
As we already explained, the superior court found that the Board had
failed to identify which programs would be most likely to help with Mikell's
rehabilitation. The court noted that the Board had made references to Mikell's "issues"
in custody as one of the reasons why it found Mikell ineligible for discretionary parole,
but the Board provided very little substance as to what those "issues" were, and the
Board provided no guidance as to what classes or programs Mikell could take (if any)
that would address those issues. The court found that the Board's letter was "unhelpful
because it otherwise praises the programs that Mikell has already pursued" without
providing "specific guidance" as to what Mikell needs to do to prepare a more
satisfactory application for discretionary parole in the future.
The superior court did not remand Mikell's case to the Board to correct
these deficiencies because it concluded that, by requiring Mikell to serve ten more
years, the Board had provided adequate guidance with regard to their finding under
AS 33.16.100(a)(4) ("release of the prisoner on parole would not diminish the
seriousness of the crime"). But the Board provided no explanation for why Mikell has
to serve an additional ten years before reapplying for discretionary parole, and its
selection of ten more years therefore appears arbitrary.
Moreover, as we explained in Stoneking, while subsection (a)(4) primarily
looks backward to the original offense, a prisoner's rehabilitation remains relevant to
the Board's consideration of the seriousness of the crime.22 That is, whether a prisoner's
release on discretionary parole will "engender disrespect for the law or be incompatible
with societal norms" will be affected by the prisoner's post-offense conduct, including
22 See Stoneking, 2025 WL 940243, at *11.
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the extent of their rehabilitation efforts while incarcerated.23 It is therefore inadequate
for the Board to simply direct the prisoner to serve more time without providing
additional guidance as to what programming may help ameliorate the Board's concerns
regarding the (a)(4) criterion.
In any event, in the letter it issued after reconsideration, the Board also
relied on AS 33.16.100(a)(1) (whether "the prisoner will live and remain at liberty
without violating any laws or conditions imposed by the board"). It was therefore
incumbent on the Board to provide specific guidance to Mikell regarding what steps he
should take to address the Board's concerns under subsection (a)(1).
Accordingly, we remand Mikell's case to the Board so that the Board may
clarify and, if appropriate, reconsider its ten-year set-off, as well as provide adequate
guidance to Mikell regarding what programming he should complete to address the
Board's concerns.
Conclusion
For the reasons explained in this opinion, we VACATE the superior
court's judgment and REMAND this case to the Parole Board for further proceedings
consistent with this decision.
23 Id. at *9 n.43.
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