| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska v Teila V. Tofelogo (6/28/2019) sp-7381
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-16931
Petitioner, ) Court of Appeals No. A-12542
)
v. ) Superior Court No. 3KO-14-00688 CR
)
TEILA V. TOFELOGO,
) O P I N I O N
)
Respondent.
) No. 7381 - June 28, 2019
)
P
etition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kodiak, Steve W. Cole,
Judge.
Appearances: Diane L. Wendlandt, Assistant Attorney
General, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for Petitioner. Emily Jura, Assistant Public
Defender, and Quinlan Steiner, Public Defender, Anchorage,
for Respondent.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
MAASSEN, Justice.
I. INTRODUCTION
A man accidentally killed his roommate with a large knife while
demonstrating martial arts moves. He pled guilty to criminally negligent homicide and
----------------------- Page 2-----------------------
stipulated to the applicability of a statutory aggravator that allows sentencing above the
upper range when a crime is "committed against . . . a member of the social unit made
1 On appeal of the
up of those living together in the same dwelling as the defendant."
sentence, the defendant argued that the aggravator was inappropriate in the context of his
case. The court of appeals agreed, concluding that the aggravator is limited to cases in
which the defendant's conduct was specifically directed at the victim and had some
source in the relationship between the victim and the defendant.2
WegrantedtheStateofAlaska's petitionfor hearing. Becauseweconclude
that the aggravator applies to the facts of this case and the sentencing court was not
clearly mistaken in giving it some weight, we reverse the decision of the court of appeals.
II. FACTS AND PROCEEDINGS
Teila Tofelogo lived in a group home that provided a sober living
environment for men in recovery. According to the later findings by the sentencing
court, on an afternoon in November 2016 Tofelogo was "horseplaying" with what he
called a "ninja knife," swinging it around while his roommate, Dennis Fathke, sat on a
bed behind him. Tofelogo failed to notice when Fathke stood up and came closer, and,
while making a turn with the knife, Tofelogo accidentally stabbed Fathke through the
bicep and into his chest. Tofelogo summoned help and attempted to administer first aid,
but Fathke died soon afterward.
Tofelogo pled guilty to criminally negligent homicide and stipulated to the
applicability of AS 12.55.155(c)(18)(A), an aggravating factor that allows sentencing
above the presumptive range if "the offense was a felony . . . specified in AS 11.41
['Offenses Against the Person'] and was committed against a spouse, a former spouse,
1 AS 12.55.155(c)(18)(A).
2 Tofelogo v. State, 408 P.3d 1215, 1216-20 (Alaska App. 2017).
-2- 7381
----------------------- Page 3-----------------------
or a member of the social unit made up of those living together in the same dwelling as
the defendant." Tofelogo argued, however, that the aggravator should be given "little
to no weight" because his conduct did "not fall into the pattern of abusive and
threatening conduct typified in a domestic violence case."
The superior court sentenced Tofelogo to six years imprisonment with four
suspended; the composite sentence, including the suspended time, was above the
3 The
presumptive term of one to three years for first-felony negligent homicide.
increased sentence was allowed by the applicability of the aggravator, which raised the
upper limit to ten years.4 The court said it was giving the aggravator "some weight" but
"not a tremendous, [not] a lot of weight." The court noted the prevalence of domestic
violence in the community, the state, and "the whole world," observing that it involves
not just intra-family violence but "also includes people who are living together such as
here." The court said that it would have given the factor much more weight if the offense
had occurred in a more typical domestic setting - "if this offense had been committed
by the defendant against his spouse, his girlfriend, his own parents, [or] his children."
But despite the lack of a family relationship, the court declined to give the factor no
weight at all; the court cited a "right to feel safe and secure in our own homes without
someone who is living amongst us hurting us or killing us, and it doesn't have to
necessarily be someone that we're related to."
3 See AS 12.55.125(d)(2)(B) (providing for presumptive termof one to three
years "if the offense is a first felony conviction, the defendant violated AS 11.41.130,
and the victim was . . . 16 years of age or older").
4 See AS 12.55.125(d) (providing that "a defendant convicted of a class B
felony may be sentenced to a definite term of imprisonment of not more than 10 years");
AS 12.55.155(a)(1) (providing that if "the low end of the presumptive range is four years
or less, the court . . . may increase the active term of imprisonment up to the maximum
term of imprisonment for factors in aggravation").
-3- 7381
----------------------- Page 4-----------------------
Tofelogo appealed his sentence to the court of appeals, arguing, as relevant
5
here, that aggravator (c)(18)(A) was inappropriate in the context of his case.
The court
of appeals agreed, reasoning that the aggravator was intended to apply to crimes of
domestic violence in which "the identity of the victim and the victim's relationship to the
defendant [bear on] the blameworthiness of the defendant's conduct or the defendant's
6 Concluding that Tofelogo's crime was not the kind the
degree of dangerousness."
aggravator was intended to address, the court of appeals held that the sentencing court
erred in giving the factor any weight at all.7
The State petitioned for hearing, and we granted review.
III. STANDARDS OF REVIEW
"The existence or non-existence of an aggravating or mitigating factor is
8 Determining whether the factor applies "involves a
a mixed question of law and fact."
two-step process: the court must (1) assess the nature of the defendant's conduct, a
factual finding, and then (2) make the legal determination of whether that conduct falls
within the statutory standard."9
"Any factual findings made by the court regarding the
nature of the defendant's conduct are reviewed for clear error, but whether those facts
5 See Tofelogo , 408 P.3d at 1216. Tofelogo also argued that the sentencing
court erred by relying on his prior criminal history, but the court of appeals did not reach
that issue and it is not before us on the State's petition. See id. at 1220.
6 Id. at 1219.
7 Id . at 1220.
8 Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
9 Id.
-4- 7381
----------------------- Page 5-----------------------
10
establish that the conduct" falls within the factor's ambit "is a legal question." In
interpreting the scope of an aggravating factor, we apply our independent judgment,
interpretingthestatute"according to reason, practicality, and common sense, considering
the meaning of the statute's language, its legislative history, and its purpose." 11
If a factor is found to apply, the amount of weight to give it is committed
to the sentencing court's discretion.12 "[W]hen the issue is one of sentencing
discretion - whether and how much a defendant's sentence should be adjusted on
account of an aggravating or mitigating factor - we will employ the 'clearly mistaken'
standard of review."13 Under this standard "the sentence will be modified only in those
instances where the reviewing court is convinced that the sentencing court was clearly
mistaken in imposing a particular sentence."14 In making such a determination, we
independently review the record.15
10 Id.
11 Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp ., 189 P.3d 1032,
1036 (Alaska 2008).
12 See, e.g., Woods v. State, 667 P.2d 184, 188 (Alaska 1983) ("The weight
to be assigned to this aggravating factor is a question which is committed to the
sentencing court's discretion.").
13 Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App. 1991).
14 McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); see also State v.
Wentz, 805 P.2d 962, 964-68 (Alaska 1991) ("[T]he sentence imposed by the trial court
may be reversed only where the appellate court, after independent review of the record,
'is convinced that the sentencing court was clearly mistaken in imposing a particular
sentence.' " (quoting State v. Graybill, 695 P.2d 725, 729 (Alaska 1985))).
15 McClain, 519 P.2d at 813.
-5- 7381
----------------------- Page 6-----------------------
IV. DISCUSSION
A. Aggravator (c)(18)(A) By Its Plain Language Applies To Tofelogo's
Crime.
Alaska Statute 12.55.155(c) lists factors that "shall be considered by the
16
sentencing court if proven in accordance with this section" and that "may allow
imposition of a sentence above the presumptive range set out in AS 12.55.125." These
so-called aggravators include the one central to this appeal: "the offense was a
felony . . . specified in AS 11.41 ['Offenses Against the Person'] and was committed
against a spouse, a former spouse, or a member of the social unit made up of those living
17
together in the same dwelling as the defendant." Tofelogo stipulated to the
applicability of this factor in his plea agreement, and by its terms it appears to apply.
Tofelogo agreed to plead guilty to criminally negligent homicide, a felony "specified in
18
AS 11.41"; moreover, the crime "was committed against" his roommate, ostensibly "a
member of the social unit made up of those living together in the same dwelling as the
19
defendant." The superior court gave this stipulated factor "someweight" in sentencing.
For the reasons that follow, we conclude that the superior court correctly
applied the aggravator to the facts of this case, and that the weight the court gave the
aggravator did not result in a sentence that is clearly mistaken.
16 AS 12.55.155(f) sets out the procedure by which the State is required to
present a listed factor for the sentencing court's consideration.
17 AS 12.55.155(c)(18)(A).
18 AS 11.41.130 defines criminally negligent homicide and classifies it as a
class B felony.
19 See AS 12.55.155(c)(18)(A).
-6- 7381
----------------------- Page 7-----------------------
B. The Court Of Appeals Rejected A Literal Reading Of Aggravator
(c)(18)(A).
The court of appeals agreed that "Tofelogo's case falls within the literal
20
wording of aggravator (c)(18)(A)."
It nevertheless concluded that "the rationale of this
aggravator does not apply to the facts of Tofelogo's case, and the sentencing judge
21
should not have given the aggravator any weight." The court began its analysis by
stating that "[t]he crimes covered by aggravator (c)(18)(A) are a subset of the larger
category of 'crimes involving domestic violence' - the category of offenses defined by
22
AS 18.66.990(3) and (5)." The court determined that the aggravator was therefore
"based on the same rationale that prompted the legislature to enact the definition of
'crime involving domestic violence': the policy of altering various provisions of law to
facilitate the prosecution and punishment of crimes that occur between people who are
23
involved with or related to each other in specified ways."
The court of appeals then discussed past decisions in which, analyzing the
definition of "crime involving domestic violence," it had "pointed out that the literal
wording of this definition encompasses more situations than the legislature
intended - situations where it does not make any sense to treat a crime differently based
24 The court cited both
on the relationship between the defendant and the victim."
20 Tofelogo v. State, 408 P.3d 1215, 1220 (Alaska App. 2017).
21 Id.
22
Id. at 1217.
23 Id.
24 Id.
-7- 7381
----------------------- Page 8-----------------------
25 26
Carpentino v. State and Bingaman v. State, in which it had explained that the
legislature's broad definition of "domestic violence," if read "literally, . . . would cover
many instances where the specified relationship between the defendant and the victim
is irrelevant to assessing whether the defendant is atypically dangerous or whether the
27 The court posed hypotheticals
defendant's conduct is atypically blameworthy."
showing the definition's potential overbreadth: for example, an automobile accident that
is categorized as a crime of domestic violence only because the victim, by chance,
happens to fall under the broad definition of "household members" (the victim in the
example is "the child of a former high school sweetheart").28 The court concluded that
such a result would contravene the "social policy underlying" the (c)(18)(A) aggravator:
"to authorize courts to impose more severe sentences on defendants whose relationship
29
to their victim makes the crime more blameworthy," e.g., spouses and former spouses.
Referring to the aggravator's additional inclusion of "a member of the social unit made
of those living together in the same dwelling as the defendant," the court cautioned that
if it were "[i]nterpreted literally," it "would apply to a defendant who was convicted of
felony assault for causing a traffic accident that resulted in injuries to other people" who
included, "by chance, . . . the defendant's former spouse, or . . . another resident of the
defendant's dormitory or barracks."30 In such a case, the court reasoned, "the rationale
25 42 P.3d 1137 (Alaska App. 2002) (opinion on rehearing).
26 76 P.3d 398 (Alaska App. 2003).
27
Tofelogo, 408 P.3d at 1217-18.
28 Id. at 1218 (quoting Bingaman, 76 P.3d at 412).
29 Id. at 1219 (emphasis added).
30 Id. (quoting AS 12.55.155(c)(18)(A)).
-8- 7381
----------------------- Page 9-----------------------
behind aggravator (c)(18)(A) does not apply - because the identity of the victim and
the victim's relationship to the defendant have essentially no bearing on the
blameworthiness of the defendant's conduct or the defendant's degree of
dangerousness."31
Summarizing, the court of appeals cited its earlier observation that "the
'hallmark' of domestic violence is conduct whose purpose is 'to coerce, control, punish,
32 Crimes
intimidate, or exact revenge within the context of an intimate relationship.' "
of domestic violence "are all implicitly premised on the assumptions that the defendant's
conduct was directed at the victim, and that [their relationship] provided a motivation for
the crime, or . . . made the victim more vulnerable, or . . . was otherwise a significant
contributing factor in the crime."33 Concluding that these "assumptions do not apply to
Tofelogo's case," the court held that "the sentencing judge should not have given the
aggravator any weight."34
C. The Plain Language Of Aggravator (c)(18)(A) Shows A Reasonable
Purpose Not Contradicted By Legislative History.
Our disagreement with the court of appeals centers on its conclusion that
aggravator (c)(18)(A) cannot be interpreted literally consistent with its purpose. We
begin with the statutory language itself; we agree with the court of appeals that read
31 Id.
32 Id. (emphasis added) (quoting Bates v. State , 258 P.3d 851, 862 (Alaska
App. 2011).
33 Id. at 1219-20.
34 Id. at 1220.
-9- 7381
----------------------- Page 10-----------------------
35
literally it applies to Tofelogo's case. As for the statute's purpose, the language
reasonably implies a legislative intent to make more blameworthy crimes committed
against not only spouses and former spouses but also persons in their own living
spaces - where they may legitimately have a heightened expectation of safety and
36 especially with regard to danger from members of their own "social unit."37
security,
Such a purpose - grounded in the language the legislature chose to use - is reasonable
in and of itself. Finding a reasonable purpose does not require us to add implicit
requirements such as those the court of appeals read into the aggravator: that the
defendant and the victim also share a special, intimate, spouse-like relationship, and that
the crime arose out of that relationship.38 In fact, as the State points out, the court of
appeals has in the past affirmed sentencing courts' application of aggravator (c)(18)(A)
39
to living situations that did not have those characteristics.
35 See id.
36 The State cites several cases recognizing "the added seriousness when an
offense is committed in the victim's home," including Amarok v. State , 789 P.2d 377,
380 (Alaska App. 1990) (observing that while sexual assault was a "serious threat to [the
victim's] personal safety and personal privacy[,] . . . [the accompanying] burglary
violated [the] victim's significant and distinctly different right to privacy in her own
home, thereby resulting in incrementally greater harm").
37 The sentencing court recognized this as the "right to feel safe and secure
in our own homes without someone who is living amongst us hurting us or killing us."
38 Tofelogo, 408 P.3d at 1219.
39 See, e.g., Pruett v. State, 742 P.2d 257, 259, 262 (Alaska App. 1987),
(rejecting argument that social unit "factor should be limited to spouses and children"
and affirming sentencing court's application of it to defendant's abuse of her live-in
housekeeper), overruled on other grounds by State v. Wentz, 805 P.2d 962 (Alaska
1991); Komakhuk v. State, 719 P.2d 1045, 1046, 1048 (Alaska App. 1986) (holding that
(continued...)
-10- 7381
----------------------- Page 11-----------------------
We follow a "sliding scale approach to statutory interpretation, in which
'the plainer the statutory language is, the more convincing the evidence of contrary
40 To support the court of appeals' interpretation
legislative purpose or intent must be.' "
of (c)(18)(A), Tofelogo cites the legislative commentary that accompanied the
aggravator's passage. The legislature noted that the factor
is applicabletocrimes involving domestic violence. Its scope
is restricted to crimes against the person (AS 11.41) directed
against a spouse, a former spouse or a member of the social
unit comprised of those living together in the same dwelling
as the defendant. Its addition reflects a legislative
determination that crimes against the person involving
domestic violence represent one of the more serious criminal
[41]
justice problems in Alaska.
According to Tofelogo, this language evinces a legislative intent that the aggravator "be
'restricted' to violent crimes that are 'directed against' a spouse/former spouse or
someone with whom the defendant lives, and that 'involve domestic violence.' " But we
read the commentary as simply paraphrasing the aggravator's language, not narrowing
its literal scope by a deliberate choice of slightly different words (e.g., "crimes . . .
directed against" the victim as opposed to crimes "committed against" the victim).
Tofelogo advancesnoother legislativehistory to support his interpretation of (c)(18)(A),
39 (...continued)
sentencing judge "did not abusehis discretion in finding that AS12.55.155(c)(18) covers
a living situation such as" that of defendant who shot his two adult housemates).
40 Adamson v. Municipality of Anchorage , 333 P.3d 5, 11 (Alaska 2014)
(quoting McDonnell v. State Farm Mut. Auto. Ins. Co., 299 P.3d 715, 721 (Alaska
2013)).
41 Senate Journal Supp. No. 44 at 25, 1980 Senate Journal 1418; House
Journal Supp. No. 79 at 26, 1980 House Journal 1749.
-11- 7381
----------------------- Page 12-----------------------
and the court of appeals cited none. The legislative history does not convince us that the
aggravator should be read other than literally.
D. The Breadth Of Aggravator (c)(18)(A) Allows The Sentencing Court
To Consider The Parties' Relationship When Weighing The Factor.
The (c)(18)(A) aggravator preexisted AS 18.66.990(3)'s definition of
"crimesinvolving domestic violence" to include crimes "committedagainst a'household
member.' "42 However, we agree with the court of appeals that the crimes covered by
(c)(18)(A) are functionally a "subset" of those covered by the later definition, at least
in the sense that the aggravator applies to fewer crimes than those covered by the
definition and any crime included in the aggravator necessarily falls within the definition
43
as well. "Household member" is broadly defined, including such categories as "adults
or minors who live together or who have lived together," "adults or minors who are
dating or who have dated," and "adults or minors who are related to each other up to the
44
fourth degree of consanguinity." The court of appeals has consistently held this
definition to be broader than necessary to effectuate the domestic violence statutes'
45
underlying rationale, and for that reason it has decided that some situations technically
covered - such as criminally negligent conduct that impacts relatives only by
chance - should not be treated as crimes of domestic violence for purposes such as
42 Aggravating factor (c)(18)(A) was first codified in 1980. See Ch. 102,
§§ 39-41, SLA 1980. The definition of "crimes involving domestic violence" was
codified in 1996. See Ch. 64, § 33, SLA 1996.
43 See Tofelogo, 408 P.3d at 1217 (citing AS 18.66.990(5)(A) and (B)).
44 AS 18.66.990(5)(B), (C), (E).
45 See, e.g., Bingaman v. State, 76 P.3d 398, 407-12 (Alaska App. 2003);
Carpentino v. State, 42 P.3d 1137, 1140-41(Alaska App. 2002).
-12- 7381
----------------------- Page 13-----------------------
limiting a defendant's ability while on bail to return to a home shared with the victim 46
47
or requiring batterer's intervention treatment.
But we disagree that aggravator (c)(18)(A) is overbroad as applied to
Tofelogo's case. The statute provides that an aggravator, if proven, "shall be considered
by the sentencing court" and "may allow imposition of a sentence above the presumptive
range."48 A finding that an aggravator applies does not dictate the aggravator's weight.
Once the sentencing court has concluded that the facts bring the case within the
aggravator's literal language, the weight the court gives the aggravator is a matter of
discretion.49 If the court finds, for example, that it was purely a matter of chance that the
defendant and the victim were members of the same social unit "living together in the
same dwelling," it may give the aggravator less weight than it would have if the
defendant had directed the crime against an intimate partner for purposes of intimidation
or coercion.
Take the example given by the court of appeals, in which a defendant "was
convicted of felony assault for causing a traffic accident that resulted in injuries to other
people[,]" including, "by chance, . . . the defendant's former spouse, or . . . another
resident of the defendant's dormitory or barracks."50 If these facts are proven, the court
46 See Tofelogo , 408 P.3d at 1218-19 (citing Williams v. State , 151 P.3d 460,
467-68 (Alaska App. 2006)).
47 See id. at 1219 (citing Cooper v. District Court, 133 P.3d 692, 707 (Alaska
App. 2006)).
48 AS 12.55.155(c) (emphasis added).
49 See, e.g., Woods v. State, 667 P.2d 184, 188 (Alaska 1983); Lepley v. State,
807 P.2d 1095, 1099 n.1 (Alaska App. 1991).
50 Tofelogo, 408 P.3d at 1219 (citing AS 11.41.220(a)(1)(B)).
-13- 7381
----------------------- Page 14-----------------------
should consider the aggravator because by its plain language it applies; under the
circumstances, however, the court may decide to give the aggravator little weight
because, in the court of appeals' words, "the identity of the victim and the victim's
relationship to the defendant have essentially no bearing on the blameworthiness of the
51 The tenuousness of
defendant's conduct or the defendant's degree of dangerousness."
the relationship goes to the weight of the aggravator, but it does not allow a court to
ignore the aggravator's plain language in determining whether it applies.
E. The Sentencing Court Was Not Clearly Mistaken In Giving
Aggravator (c)(18)(A) Some Weight.
The sentencing court discussed the basis for aggravator (c)(18)(A), noting
the prevalence of domestic violence in society but observing that such crimes are not
limited to family members: "It also includes people who are living together such as
here." While emphasizing the "right to feel safe and secure in our own homes without
someone who is living amongst us hurting us or killing us," the court differentiated
Tofelogo's situation from one involving a spouse, girlfriend, or other family member;
in such a case, the court said, it "wouldn't have batted an eye to give [Tofelogo] most of"
the allowable maximum. In short, the court explicitly recognized the applicability of the
factor, acknowledged that the circumstances were not those of the typical domestic
violence crime (where the factor might apply more forcefully), and because of the
parties' relationship gave the factor only "some weight," "not a tremendous [amount] of
weight." The court sentenced Tofelogo to six years (with two to serve), three years
above the presumptive range for a first-felony, criminally negligent homicide, but well
below the allowable ten-year maximum.52
51 Id.
52 See AS 12.55.125(d).
-14- 7381
----------------------- Page 15-----------------------
This sentence was supported by the record. As the sentencing court noted,
Tofelogo was swinging a very sharp, 12-inch-long knife in close proximity to Fathke,
his roommate, in an enclosed, shared living space. Tofelogo specifically acknowledged
the risk, whether jokingly or not; he reportedly told Fathke, "I'm a killer, dude. You got
to watch out." There is no indication that Fathke desired this interaction: he was lying
on his bed and stood up just before he was stabbed. Regardless of Tofelogo's intent, his
willingness to engage in this dangerous and intimidating behavior may certainly be read
as implicating the aggravating factor's purpose.
Given the court's reasoned consideration of the aggravator's purpose, its
applicability to the facts of this case, and the resulting sentence well within permissible
bounds, we cannot say that the sentence was clearly mistaken.
F. A Remand Is Necessary For Consideration Of Tofelogo's Other
Sentencing Issue On Appeal.
Tofelogoappealednotonlythesentencing court's application of aggravator
(c)(18)(A), but two other issues as well: (1) the sentencing court's rejection of the
proposed "least serious" mitigator, 53 54
which the court of appeals affirmed, and (2) the
sentencing court's decision to give "unjustified weight to Tofelogo's prior criminal
history," which the court of appeals did not reach "[g]iven the fact that Tofelogo must
be re-sentenced," and "Tofelogo's attorney [could] address this matter at the re-
55 Our disposition of the petition would reinstate and affirm the sentence
sentencing."
imposed by the superior court, except that the "prior criminal history" issue remains
53 AS 12.55.155(d)(9) ("the conduct constituting the offense was among the
least serious conduct included in the definition of the offense").
54 Tofelogo, 408 P.3d at 1216.
55 Id. at 1220.
-15- 7381
----------------------- Page 16-----------------------
undecided and may affect the sentence. We must therefore remand to the court of
appeals for its further consideration of that issue. Depending on its resolution of that
issue, the court of appeals may then either remand to the superior court for re-sentencing
consistent with this opinion or reinstate and affirm the sentence.
V. CONCLUSION
We REVERSE the decision of the court of appeals and REMAND for
consideration of the "prior criminal history" issue.
-16- 7381
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
