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State v. Malloy (5/3/2002) sp-5560
State v. Malloy (5/3/2002) sp-5560
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, ) Supreme Court No. S-9754
)
Petitioner, ) Court of Appeals No. A-
6873
) Superior Court No.
v. ) 3AN-95-9983 CR
)
MAUREEN ALICE MALLOY, ) O P I N I O N
)
Respondent. ) [No. 5560 - May 3,
2002]
)
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court, Third Judicial
District, Anchorage, Elaine M. Andrews,
Judge.
Appearances: Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Petitioner. Dan S. Bair, Anchorage, for
Respondent.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Under AS 12.55.125(a)(3), a defendant convicted of
first-degree murder must receive an unsuspended term of ninety-
nine years without eligibility for parole if the sentencing court
finds by clear and convincing evidence that the defendant
subjected the murder victim to substantial physical torture.
Does this statute impermissibly subject the defendant to
increased punishment for an aggravated class of first-degree
murder that has not been proved beyond a reasonable doubt to the
jury? Because the statutes mandatory sentence falls within the
range otherwise authorized for first-degree murder, we hold that
AS 12.55.125(a)(3) does not define a new, aggravated class of
first-degree murder, but simply imposes a permissible limit on
the courts usual sentencing discretion.
II. FACTS AND PROCEEDINGS
A jury convicted Maureen Alice Malloy of first-degree
murder, kidnapping, and tampering with evidence.1 Before
sentencing, the state gave notice that it would seek a sentence
under AS 12.55.125(a)(3); this statute requires the court to
impose a maximum, unsuspended term of ninety-nine years when it
finds by clear and convincing evidence that a defendant convicted
of first-degree murder subjected the victim to substantial
physical torture.
In response to the states notice, Malloy challenged the
statute as unconstitutional because it did not require the state
to charge the statutorily specified aggravating circumstance
substantial physical torture as an element of the offense or to
prove it beyond a reasonable doubt to the jury.
Superior Court Judge Elaine M. Andrews rejected Malloys
constitutional challenge and, after finding by clear and
convincing evidence that Malloy had subjected her victim to
substantial physical torture, imposed the mandatory sentence
under AS 12.55.125(a)(3): a term of ninety-nine years
imprisonment without eligibility for discretionary parole.2
Despite the mandatory nature of the sentence, Judge Andrews noted
that she would have sentenced Malloy to the maximum term for
murder even if subparagraph .125(a)(3) had not made it mandatory;
Judge Andrews further emphasized that, in her view, Malloy
deserved a life sentence without possibility of parole.
Malloy appealed, and the court of appeals affirmed her
convictions and sentences except for the sentencing provision
that made Malloy ineligible for discretionary parole until she
completed serving her term for first-degree murder.3 The court
vacated this parole restriction because it was imposed under AS
12.55.125(a), and the court found that this statute is
unconstitutional.4
The state petitioned for hearing, challenging the court
of appealss decision declaring AS 12.55.125(a) unconstitutional.
We granted the petition to address that issue.5
III. DISCUSSION
A. Standard of Review
Constitutional issues present questions of law, which
we review de novo.6 In ruling on questions of law we adopt the
rule that is most persuasive in light of precedent, reason, and
policy.7
B. Statutory Background
Alaska Statutes 12.55.125(a)(1)-(3) lists three
aggravating circumstances that trigger a mandatory maximum
sentence for first-degree murder.8 In imposing Malloys first-
degree murder sentence, the superior court found by clear and
convincing evidence that Malloy had subjected her murder victim
to substantial physical torture, the aggravating circumstance
listed in AS 12.55.125(a)(3), which attaches when the sentencing
court finds by clear and convincing evidence that the defendant
subjected the murder victim to substantial physical torture.
Given this finding, Judge Andrews sentenced Malloy to a ninety-
nine-year term of imprisonment for murder, as required under AS
12.55.125(a)(3); under a separate statutory provision
AS 33.16.090(b) this mandatory sentence barred Malloy from being
eligible for discretionary parole: A prisoner sentenced to a
mandatory 99-year term under AS 12.55.125(a) . . . is not
eligible for discretionary parole during the entire term.9
Like the mandatory sentence specified by AS
12.55.125(a)(1)-(3), the maximum discretionary sentence for first-
degree murder also set out in AS 12.55.125(a) is ninety-nine
years;10 and under AS 12.55.115, a court sentencing a defendant
for first-degree murder generally has authority to deny
eligibility for discretionary parole, regardless of whether the
court finds one of the aggravating circumstances that trigger a
mandatory maximum term under AS 12.55.125(a)(1)-(3).11
C. The Court of Appealss Decision
Upon considering the present case in light of these
statutory provisions, the court of appeals found that Malloys
sentence was procedurally flawed because AS 12.55.125(a)
improperly allowed the sentencing court to find the existence of
the aggravating circumstances that subjected Malloy to an
increased mandatory maximum sentence.12 In context, the court
ruled, the factors listed in AS 12.55.125(a)(1)-(3) amounted to
elements of a separate, more serious class of first-degree
murder, and so should have been formally charged and proved
beyond a reasonable doubt to the jury.13 In reaching
this ruling, the court of appeals relied primarily on Donlun v.
State,14 a case decided by the Alaska Supreme Court in 1974.15
Donlun involved an offender convicted under Alaskas former
burglary statute, which authorized three different maximum
burglary sentences: ten years for an ordinary burglary, fifteen
years for a burglary committed at night, and twenty years for a
burglary in an occupied dwelling.16 Although Donluns indictment
failed to allege either of the statutorily specified aggravating
circumstances, the evidence at trial indicated that he had
committed his offense in an occupied dwelling at night. The
trial court thus explicitly based Donluns sentence on the premise
that he was subject to a maximum term of twenty years.17
Donlun appealed, challenging the superior courts
sentencing premise. This court reversed, holding that where a
criminal statute provides for graded or enhanced ranges of
punishments for aggravated instances of the proscribed offense,
an indictment charging the offense must specify the aggravating
facts before the defendant can be exposed to an increased range
of punishment.18 We grounded this conclusion on general
principles of fairness and notice, without saying whether it was
constitutionally based: We believe that if a defendant is to be
afforded a fair opportunity to defend against a burglary charge
involving aggravated circumstances, such circumstances must be
set forth in the indictment . . . and proven at trial.19
In considering Malloys appeal, the court of appeals
read Donlun as stating a rule of law based on the Alaska
Constitution.20 The court construed Donlun to mean
that when a statute provides a greater
maximum penalty for a crime based on
specified aggravating factors, Alaskas
guarantees of due process (Article I, Section
7) and of trial by jury (Article I, Section
11) [and also, when a felony is charged,
Alaskas guarantee of grand jury indictment
(Article I, Section 8)] require us to treat
the statute as creating separate offenses,
and to treat the aggravating factors as
elements of the aggravated form of the
offense. The defendant will not be subject
to the greater maximum penalty unless the
charging document specifies the pertinent
aggravating factors and the State proves
these aggravating factors beyond a reasonable
doubt at the defendants trial.[21]
Applying this interpretation of Donlun to the case at
hand, the court of appeals concluded that Malloys parole
restriction was invalid because Malloy had not been specifically
charged and convicted for inflicting substantial physical torture
on her murder victim. The court expressly recognized that Alaska
law ordinarily empowers sentencing courts to restrict a
defendants normal eligibility for parole or deny it altogether.22
But it nonetheless reasoned that a mandatory parole restriction
imposed under AS 12.55.125(a)(1)-(3) represents a new, harsher
penalty23 than the usual maximum penalty for first-degree murder,
since the courts earlier case law had defined maximum penalty to
mean the [ninety-nine-year] maximum term of imprisonment, whether
or not the sentencing judge restricts or denies parole
eligibility.24
After emphasizing that AS 12.55.125(a) not only
requires sentencing judges to impose the maximum term of
imprisonment that might have been imposed under prior law, but .
. . also effectively requires sentencing judges to exercise their
utmost power . . . to restrict the defendants parole, the court
of appeals found that the challenged statute establishes a
separate maximum penalty for certain offenders convicted of first-
degree murder, a penalty that is harsher than the maximum penalty
specified for other offenders convicted of this crime.25 Viewing
this finding in light of Donlun, the court declared that AS
12.55.125(a) violated Malloys constitutional rights to an
indictment, a jury trial, and a finding of guilt beyond a
reasonable doubt on the issue of substantial physical torture.26
The court thus vacated Malloys mandatory parole restriction and
remanded the case for resentencing.27
D. Analysis
When the court of appeals heard Malloys case and
reached its decision, federal constitutional case law on point
was unsettled and offered no clear resolution as to whether
Malloy had a right to be formally charged with and convicted of
aggravating circumstances such as those specified in AS
12.55.125(a)(3) before being exposed to mandatory maximum term
for first-degree murder.28 Because of this uncertainty, the court
of appeals chose to view Donlun as a decision grounded on the
Alaska Constitution; the court thus extended to Malloy the state
constitutional protections that it found implicit in Donlun.29
Less than two months after the court of appeals decided
Malloy, the United States Supreme Court ended the federal laws
lingering uncertainty by deciding Apprendi v. New Jersey,30 a
landmark case interpreting the Fourteenth Amendments Due Process
Clause to incorporate procedural protections that closely mirror
the protections that Malloy found embedded in the Alaska
Constitution.
Specifically, Apprendi holds that, [o]ther than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to the jury, and proved beyond a reasonable doubt.31
Conversely put, Apprendi forbids treating as a mere sentencing
factor any aggravating circumstance (apart from a prior
conviction) that must exist in order to subject the defendant to
a legally prescribed punishment32 or in other words, any fact
which is essential to the punishment to be inflicted.33
This holding, directly binding on states under the
Fourteenth Amendment, lays to rest any controversy over the
accuracy of the court of appealss view that Donlun is grounded on
constitutional principles. The court of appealss explanation of
Donluns state constitutional roots accords with Apprendi. And as
the state now recognizes, Donlun accurately presaged Apprendis
holding that aggravating facts must be charged and proved beyond
a reasonable doubt to the jury when their existence would allow
or require the court to impose a sentence exceeding the maximum
otherwise authorized.
But Apprendi does not lay to rest the narrower
controversy presented here: whether the court of appeals
correctly applied Donlun to Malloys situation that is, whether
the court of appeals properly concluded that Malloys murder
sentence a mandatory maximum sentence imposed under AS
12.55.125(a)(3) actually exceeds the maximum otherwise
authorized.
The state correctly points out that, even without
relying on the aggravating circumstances spelled out in the
mandatory sentencing provision, Judge Andrews could have
sentenced Malloy to exactly the same term that she received under
AS 12.55.125(a)(3) ninety-nine years without possibility of
parole. Because Judge Andrews had discretion to impose the same
sentence in any event, the state asserts that AS 12.55.125(a)(1)-
(3) cannot plausibly be construed to mandate any increase in the
potential maximum sentence that might otherwise be authorized.
Therefore, the state reasons, neither Donlun nor Apprendi
precludes treating the aggravating circumstances listed in
paragraphs .125(a)(1)-(3) as ordinary sentencing factors and
similarly, neither case justifies characterizing the mandatory
sentencing statute as a substantive law defining a new crime:
aggravated first-degree murder. We agree.
As the court of appeals expressly recognized, the usual
maximum sentence for first-degree murder is ninety-nine years in
prison, and in all such cases sentencing judges have the
authority under AS 12.55.115 to restrict a defendants normal
eligibility for parole; the court nonetheless ruled that AS
12.55.125(a) establishes a separate maximum penalty . . . that is
harsher than the maximum penalty specified for other offenders
convicted of [first-degree murder].34 The court gave two reasons
for holding that AS 12.55.125(a)(3) exposed Malloy to a harsher
maximum penalty even though Judge Andrews could have imposed the
same sentence without invoking the mandatory sentencing
provision: first, AS 12.55.125(a) not only limits the courts
discretion but completely abolishes the range of sentences in
favor of a fixed 99-year sentence;35 second, the mandatory parole
restriction that attaches to a mandatory term imposed under
AS 12.55.125(a) results in a sentence exceeding the definition
that the court of appeals usually applies to the term maximum
sentence. In the courts words:
True, sentencing judges have the
authority under AS 12.55.115 to restrict a
defendants normal eligibility for parole or
deny it altogether. But we have previously
held that a defendant receives a maximum
sentence if he or she is sentenced to the
maximum term of imprisonment, whether or not
the sentencing judge restricts or denies
parole eligibility. That is, the mandatory
sentencing provision in the first-degree
murder statute not only requires sentencing
judges to impose the maximum term of
imprisonment that might have been imposed
under prior law, but it also effectively
requires sentencing judges to exercise their
utmost power under AS 12.55.115 to restrict
the defendants parole.[36]
But neither of these reasons supports the conclusion that AS
12.55.125(a) increases the usual maximum sentence for first-
degree murder in the manner contemplated by Donlun and Apprendi
that is, by empowering the court to impose a sentence harsher
than the harshest sentence otherwise authorized.
The courts first reason that AS 12.55.125(a)
eliminates all sentencing discretion and requires the maximum
available sentence bears no relation to the core concern
underlying Donlun and Apprendi: protecting a defendant from a
higher sentencing range than otherwise possible. In addressing
this concern Donlun and Apprendi recognize that an increased
sentence resulting from a finding of statutory aggravating
circumstances is not a harsher maximum sentence than otherwise
authorized unless it falls outside the outer limits of the range
of sentences that the court could otherwise impose.37
To be sure, any mandatory sentence that entirely
eliminates a judges sentencing discretion may result in
occasional cases where extraordinary circumstances might appear
to preclude imposing the mandated sentence without jeopardizing
the courts ability to promote Alaskas constitutional sentencing
goal of reforming the offender in the particular case at hand.38
But because this kind of constitutional friction implicates
concerns relating to the substantive fairness of a mandatory
sentence in particular factual settings, it has little to do with
the concerns at issue here, which more narrowly relate to the
procedural fairness of expos[ing] the defendant to a greater
punishment than that authorized by the jurys guilty verdict.39
And as Donlun emphasized, where a statute proscribes a single
offense and commits a single range of sentences to the discretion
of the sentencing court, aggravating facts warranting sentences
in the upper spectrum of the range need not be set forth in the
complaint or indictment.40
Furthermore, a mere possibility of constitutional
friction in occasional, extraordinary cases does not justify
declaring a statute entirely invalid. And in any event, no
realistic danger of any such friction exists in the present case,
for Judge Andrewss sentencing comments make it abundantly clear
that she firmly believed Malloys mandatory sentence to be
justified and likely would have imposed exactly the same sentence
even if AS 12.55.125(a)(3) had not made it mandatory. Hence, the
fact that AS 12.55.125(a) left Judge Andrews no choice but to
impose the maximum sentence lends no support to the court of
appealss conclusion that the statute exposed Malloy to a sentence
harsher than the maximum penalty specified for other offenders
convicted of this crime.41
The court of appealss second reason for concluding that
AS 12.55.125(a) exposed Malloy to an increased maximum sentence
was that the court had previously held that a defendant receives
a maximum sentence if he or she is sentenced to the maximum term
of imprisonment, whether or not the sentencing court judge
restricts or denies parole eligibility.42 But the previous
holding referred to in this passage Capwell v. State stands for
the narrow proposition that parole eligibility should be
considered irrelevant for purposes of the rule requiring a
sentencing judge to make an express worst-offender finding before
imposing a maximum sentence.43 Nothing in Capwell suggests that
the rule in Donlun should require courts to deem a non-parole-
restricted maximum term of imprisonment to be the maximum
sentence normally authorized for first-degree murder. Moreover,
if Capwell did suggest this conclusion, then logically Capwells
definition of maximum sentence would apply to both parts of the
Donlun analysis: For if parole is transparent when we decide
what maximum sentence attaches for murder without
AS 12.55.125(a)(1)-(3), why is it not just as transparent when we
decide if a mandatory maximum sentence under that statute is
harsher?44
In reality, of course, a parole-restricted term of
ninety-nine years is undeniably harsher than a ninety-nine-year
term that does not restrict a defendants eligibility for
discretionary parole. To apply Capwells narrow definition of
maximum sentence in the Donlun context would thus place form over
substance. Both Donlun and Apprendi preclude this result: they
require us to compare the harshest sentence actually available
before a finding of aggravating circumstances under
AS 12.55.125(a) with the actual harshness of the sentence that is
mandated by such a finding: [T]he relevant inquiry is one not of
form, but of effect does the required finding expose the
defendant to a greater punishment than that authorized by the
jurys guilty verdict?45
Because the actual effect of a mandatory parole
restriction imposed under AS 33.16.090(b) is identical to that of
a parole restriction imposed at the sentencing courts option
under AS 12.55.115, and because the optional restriction is
independently authorized, it is immaterial that Capwell would
call a ninety-nine-year non-parole-restricted murder sentence a
maximum sentence in a different sentencing context.
We hold, then, that the court of appeals incorrectly
applied Donlun to Malloys situation. The mandatory sentencing
provisions of AS 12.55.125(a)(1)-(3) did not subject Malloy to a
greater maximum penalty than was otherwise authorized.
Malloy nonetheless urges us to expand Donlun beyond its
literal terms and beyond its meaning as interpreted by the court
of appeals. Citing Oregon and Hawaii case law,46 Malloy advocates
a state constitutional rule that would require the prosecution to
charge and submit to the jury any aggravating factor that is
intrinsic to the commission of the charged offense and has the
effect of narrowing the sentencing courts range of discretion in
any way that disfavors the defendant. Under this approach, for
example, Oregon has construed its state constitution to prohibit
a mandatory minimum sentence triggered by intrinsic circumstances
not specifically charged and addressed by the jury.47
But this approach has been considered by the United
States Supreme Court and rejected under the federal constitution.48
It also conflicts with Alaska cases that deal with minimum and
presumptive sentencing.49 The approach finds no support in the
text or history of the Alaska Constitution. And it is
inconsistent with Donluns statement reaffirming that where a
statute proscribes a single offense and commits a single range of
sentences to the discretion of the sentencing court, aggravating
facts warranting sentences in the upper spectrum of the range
need not be set forth in the complaint or indictment.50 For all
these reasons, we decline to expand the Donlun rule under the
Alaska Constitution to prohibit presumptive or mandatory
sentencing factors as long as those factors simply guide or limit
a sentencing courts discretion within the existing statutory
sentencing range for the offense at issue.
IV. CONCLUSION
Because AS 12.55.125(a) does not violate Donlun or
Apprendi, we VACATE the court of appealss order remanding this
case to the superior court for resentencing and AFFIRM the
superior courts sentence as originally imposed.
_______________________________
1 The underlying facts of Malloys offenses are
exceptionally brutal but are not relevant here; they are
summarized in Malloy v. State, 1 P.3d 1266, 1269 (Alaska App.
2000).
2 Judge Andrews also sentenced Malloy to a term of ninety-
nine years for kidnapping, made sixty years of that term
consecutive to the term for murder, and imposed a concurrent five-
year sentence for tampering with evidence. Malloys composite
term thus totaled 159 years imprisonment.
3 Malloy, 1 P.3d at 1290.
4 Id. at 1288, 1290.
5 Malloy v. State, 1 P.3d 1266 (Alaska App. 2000), pet.
for hrg. granted, File No. S-9754 (Alaska, October 3, 2000).
Malloy also petitioned for hearing, challenging the court of
appealss decision to affirm her conviction and total term of
imprisonment. We denied Malloys petition for hearing.
6 Keane v. Local Boundary Commn, 893 P.2d 1239, 1241
(Alaska 1995); Langdon v. Champion, 752 P.2d 999, 1001 (Alaska
1988).
7 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
8 AS 12.55.125(a)(1)-(3) provides:
(a) A defendant convicted of murder in
the first degree shall be sentenced to a
definite term of imprisonment of at least 20
years but not more than 99 years. A
defendant convicted of murder in the first
degree shall be sentenced to a mandatory term
of imprisonment of 99 years when
(1) the defendant is convicted of the
murder of a uniformed or otherwise clearly
identified peace officer, fire fighter, or
correctional employee who was engaged in the
performance of official duties at the time of
the murder; [or]
(2) the defendant has been previously
convicted of
(A) murder in the first degree under AS
11.41.100 or former AS 11.15.010 or
11.15.020;
(B) murder in the second degree under
AS 11.41.110 or former AS 11.15.030; or
(C) homicide under the laws of another
jurisdiction when the offense of which the
defendant was convicted contains elements
similar to first degree murder under AS
11.41.100 or second degree murder under AS
11.41.110; [or]
(3) the court finds by clear and
convincing evidence that the defendant
subjected the murder victim to substantial
physical torture[.]
9 See Malloy, 1 P.3d at 1281 (quoting AS 33.16.090(b)).
10 See above, footnote 8.
11 AS 12.55.115 provides: The court may, as part of a
sentence of imprisonment, further restrict the eligibility of a
prisoner for discretionary parole for a term greater than that
required under AS 33.16.090 and 33.16.100.
12 Malloy, 1 P.3d at 1285, 1288-89.
13 Id. at 1288-89.
14 527 P.2d 472 (Alaska 1974).
15 Malloy, 1 P.3d at 1285, 1288-89.
16 Donlun, 527 P.2d at 473-74 (describing former AS
11.20.080).
17 Id. at 473.
18 Id.
19 Id. at 474.
20 Malloy, 1 P.3d at 1287-89.
21 Id. at 1288.
22 Id. at 1285 (citing AS 12.55.115).
23 Id. at 1285.
24 Id. (footnote omitted) (citing Capwell v. State, 823
P.2d 1250, 1256 (Alaska App. 1991)).
25 Id. at 1285.
26 Id. at 1288, 1290.
27 The court of appeals initially ordered the superior
court to enter an amended judgment with the parole restriction
deleted. Malloy, 1 P.3d at 1290. But after the state filed a
petition for rehearing pointing out that the sentencing judge had
strongly suggested that she would have imposed the same parole
restriction as a matter of discretion under AS 12.55.115 even if
AS 12.55.125(a)(3) had not applied, the court amended its mandate
to allow the superior court to exercise its discretion on remand
with respect to Malloys eligibility for parole. Malloy v. State,
No. A-6873 (Alaska App., June 16, 2000) (order on rehearing).
28 Malloy, 1 P.3d at 1285-86 (discussing the United States
Supreme Courts then two most recent decisions on the issue,
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
Jones v. United States, 526 U.S. 227 (1999)).
29 See id. at 1287-89.
30 530 U.S. 466 (2000).
31 Id. at 490.
32 Id. at 499 (Scalia, Justice, concurring).
33 Id. at 511 (Thomas, Justice, concurring) (quoting 1 J.
Bishop, Commentaries on Criminal Law 961, pp. 564-65 (5th ed.
1872)).
34 Malloy, 1 P.3d at 1285.
35 Id.
36 Id. (footnote omitted) (citing Capwell v. State, 823
P.2d 1250, 1256 (Alaska App. 1991)).
37 See Apprendi, 530 U.S. at 482; Donlun, 527 P.2d at 474.
38 See Alaska Const. art. I, 12:
Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and
unusual punishments inflicted. Criminal
administration shall be based upon the
following: the need for protecting the
public, community condemnation of the
offender, the rights of victims of crimes,
restitution from the offender, and the
principle of reformation.
Cf. Dancer v. State, 715 P.2d 1174, 1177-79 (Alaska App. 1986)
(discussing the three-judge sentencing panels safety-valve
function in the context of a due process challenge to Alaskas
presumptive sentencing system).
39 Apprendi, 530 U.S. at 494.
40 Donlun, 527 P.2d at 474; cf. McMillan v. Pennsylvania,
477 U.S. 79 (1986) (upholding Pennsylvanias Mandatory Minimum
Sentencing Act).
41 Malloy, 1 P.3d at 1285.
42 Id. (footnote omitted).
43 823 P.2d 1250, 1256 (Alaska App. 1991), cited in
Malloy, 1 P.3d at 1285 n.47.
44 Alternatively stated, if AS 12.55.115s general
conferral of power to deny parole eligibility in all first-degree
murder cases does not authorize a maximum sentence exceeding a
non-parole-restricted term of ninety-nine years, then, similarly,
AS 33.16.090(b)s specific directive to restrict parole for
sentences imposed under AS 12.55.125(a) seemingly would not cause
those mandatory sentences to exceed the otherwise authorized
maximum sentence.
45 Apprendi, 530 U.S. at 494.
46 See State v. Janto, 986 P.2d 306, 320 (Haw. 1999);
State v. Tafoya, 982 P.2d 890 (Haw. 1999); State v. Wedge, 652
P.2d 773 (Or. 1982).
47 Wedge, 652 P.2d at 775, 778; cf. Tafoya, 982 P.2d at
902 (stating that for constitutional purposes, there is no
distinction between extended and mandatory minimum enhanced
sentencing. Both constrain the discretion of the sentencing
judge and fix the term of incarceration imposed . . . as a result
of the conviction.).
48 Apprendi, 530 U.S. at 482 (when imposing judgment
within the sentencing range prescribed by statute, courts may
consider sentencing factors relating both to the offense and the
offender); see also McMillan v. Pennsylvania, 477 U.S. 79 (1986)
(approving mandatory minimum sentencing law).
49 Notably, the court of appeals has consistently upheld
both presumptive sentencing and mandatory sentencing statutes as
constitutionally valid. See, e.g., Abdulbaqui v. State, 728
P.2d 1211 (Alaska App. 1986) (affirming enhanced presumptive
sentence as constitutional); Dancer v. State, 715 P.2d 1174, 1177-
79 (Alaska App. 1986) (upholding Alaskas presumptive sentencing
statutes against a due process challenge); and Huf v. State, 675
P.2d 268, 273 (Alaska App. 1984) (holding that a six-year
mandatory minimum sentence merely limited the judges discretion
within the penalty range of up to twenty years, when the trial
court found that the defendant possessed or used a firearm during
the commission of a felony). More notably still, in Abdulbaqui
the court disapprovingly commented on the approach adopted in
Wedge, observing that the Oregon decision conflicted with the
court of appealss ruling in Huf v. State. See Abdulbaqui, 728
P.2d at 1220.
50 Donlun, 527 P.2d at 474.
