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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JASON L. CARLSON, | ) |
| ) Court of Appeals No. A-8498 | |
| Appellant, | ) Trial Court No. 3AN-98-9716 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2029 January 27, 2006] |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Donald D. Hopwood,
Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant. John
A. Scukanec, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Jason L. Carlson was convicted of second-degree murder
under the theory that he committed a homicide while acting with
extreme indifference to the value of human life.1 For this
crime, Carlson was sentenced to 50 years imprisonment with
10 years suspended i.e., 40 years to serve.
Carlson was also convicted of five counts of evidence
tampering (both for tampering with the existing evidence and for
creating new, false evidence) and two counts of third-degree
weapons misconduct (for possessing two different concealable
firearms after having been adjudicated a delinquent minor based
on conduct that would have been a felony if he had been an
adult).2
In this appeal, Carlson raises four claims.
First, Carlson contends that his jury was misinstructed
on the meaning of extreme indifference to the value of human
life. For the reasons explained here, we conclude that Carlsons
jury was correctly instructed on the meaning of this phrase.
Second, Carlson contends that he was denied his Sixth
Amendment right to jury trial when his sentencing judge, acting
without a jury, decided to impose a sentence that exceeds the
benchmark sentencing range for second-degree murder 20 to 30
years to serve that this Court established in Page v. State, 657
P.2d 850, 855 (Alaska App. 1983). For the reasons explained
here, we conclude that a defendant being sentenced for second-
degree murder has no right to a jury trial on the question of
whether their sentence should or should not exceed the Page
benchmark range.
Third, Carlson claims that the superior court erred in
applying various aggravating factors to his sentences for
evidence tampering and weapons misconduct. We conclude that
these claims are moot, since Carlsons sentences on these seven
counts were lawful even in the absence of any aggravating
factors.
Finally, Carlson contends that his sentence is
excessive. For the reasons explained here, we conclude that
Carlsons sentence is not clearly mistaken.
Accordingly, we affirm Carlsons convictions and his
sentence.
Underlying facts
On the evening of September 24, 1998, the
Anchorage police responded to a 911 call from a
motorist regarding a potential homicide on King Street,
near Dimond Boulevard. When a police officer arrived,
he discovered a car parked on the side of the road,
with a teenage boy slumped across the front seat. The
boys upper body was covered with a jacket. When the
officer removed this jacket, he discovered that the boy
was covered in blood, that there was a hole in the boys
forehead, and that he was dead.
The boy was identified as 17-year-old George
Featherly. A medical examination revealed that
Featherly had died from a gunshot wound, and that the
gun was fired only fractions of an inch behind his
head.
The police found Featherlys pager and
discovered that he had received a call that evening
from Jason Carlson. Approximately five hours after
Featherlys body was discovered, two police detectives
went to interview Carlson at his home.
Carlson and Featherly had been best friends
for the previous five years like brothers, according
to Carlson. They saw each other nearly every day, and
Featherly slept at Carlsons house almost every weekend.
Carlson told the detectives that he had lost track of
Featherly at the Dimond Center around 7:30 the previous
evening, and that he did not know what had happened to
him.
Four days later, after security tapes at the
Dimond Center failed to corroborate Carlsons story,
Detective Larry Arend interviewed Carlson again. After
Arend told Carlson that his story was inconsistent with
the content of the security tapes, Carlson admitted
that he had been in the car when Featherly was shot.
Carlson claimed that a black man named Bee or B. had
killed Featherly.
According to Carlson, Featherly had arranged
to purchase a handgun that night from Bee. After
spending the early part of the evening at the Dimond
Center mall with Featherly, Carlson rode with him to
meet Bee in the Red Robin parking lot off Dimond
Boulevard. Bee got into the car and sat in the back
seat behind Featherly. As they were driving on King
Street, Bee pulled out a gun, pointed it at the back of
Featherlys head, and demanded that Featherly give him
money. Bee and Featherly exchanged racial slurs, and
then Bee shot Featherly in the head. Carlson claimed
that, after Bee shot his friend, Carlson jumped into
the back seat of the car and shot Bee (with another
gun, a Makarov, that was already owned by Featherly).
Carlson told Arend that, although Bee was wounded, he
managed to run away.
In the weeks following this September 28th
interview, Detective Arend showed Carlson three
photographic line-ups in an attempt to ascertain Bees
identity, but Carlson did not identify Bee in these
photo line-ups. On October 14th, Arend interviewed
Carlson again and directly challenged the truthfulness
of Carlsons story.
On November 6th, Carlsons mother found a
death threat note in front of Carlsons window. On that
same day, the police informed Carlsons attorney that
they had interviewed a woman who had seen Featherlys
car on King Street when it first pulled over. This
woman told the police that there were only two people
in the car, and neither of these two people was black.
Three days later, on November 9th, Carlson
changed his story again. He now admitted that he was
the one who shot Featherly. Carlson told the police
that the shooting was an accident: that he had been
sitting in the back seat behind Featherly, holding a
gun that Featherly had just bought, when the gun
discharged. Carlson admitted that his previous story
about Bee had been a lie. Carlson was arrested the
next day for the murder of Featherly.
Carlson was indicted for first-degree murder,
an alternative count of second-degree murder, plus five
counts of evidence tampering and two counts of third-
degree weapons misconduct. (Carlson had previously
been adjudicated a delinquent minor for conduct that
would have been a felony if he had been an adult, so he
was prohibited from possessing a concealable firearm.)
At his trial, Carlson took the stand and
reverted to the story that Bee had shot Featherly.
Carlson admitted that one part of this story was false:
he had not shot and wounded Bee after Bee killed
Featherly. Carlson told the jury that he made this
part up because he did not want anyone to think that he
did nothing after seeing his friend murdered in front
of him.
According to Carlsons testimony, once Bee
fled the scene, Carlson jumped into the back seat of
the car and retrieved the Makarov that Featherly
already owned. Carlson said that he used Featherlys
coat to wipe his fingerprints off both car doors, and
then he covered Featherlys body with the coat before he
left.
When Carlson got home, he hid Featherlys
Makarov in a stereo speaker. And, in an attempt to
create an alibi for himself, he paged Featherly.
Carlson testified that he did not tell the truth to the
police because he didnt want to get involved in it.
[He] didnt want to get ... into any kind of trouble.
Carlson conceded that he had told the police
that he was the one who shot Featherly, and that the
shooting was accidental. Carlson explained that he had
told the police this false version of events thinking
that it would get [everyone] off my back. Carlson
asserted that he was prompted to fabricate the story of
an accidental shooting because, at one point, Detective
Arend had commented that if the shooting had been
accidental, the investigation would be another ball
game.
Carlson testified that he had told his lawyer
the truth about the shooting (i.e., that Featherly had
been shot by Bee), but Carlson said that his lawyer had
advised him that the police would not believe this
account. Carlson conceded that he never told the truth
... to [Detective] Arend.
Carlson also admitted that he was the one who
wrote the death threat note that his mother found by
the window. Carlson indicated that he planted this
note so that the police would step up their search for
Bee.
At Carlsons first trial, the jury acquitted
him of first-degree murder but convicted him of four
counts of evidence tampering and one count of weapons
misconduct. The jury was unable to reach a decision on
the second-degree murder charge and on the remaining
evidence tampering and weapons misconduct charges.
Carlson was tried a second time on these
remaining charges. He again took the stand and offered
the same version of events and the same explanation of
his prior statements and misleading actions. The
prosecutor argued that Carlsons confession to Detective
Arend was much closer to the truth: Jason Carlson did
the stupidest thing hes ever done in his life, which
[was to] hold a gun [that] he didnt know ... was loaded
to the back of George Featherlys head. The gun went
off, and [Carlson has] been lying about it ever since.
This time, the jury convicted Carlson of
second-degree murder and the remaining evidence
tampering and weapons misconduct charges.
The supplemental jury instruction on extreme
indifference to the value of human life
As explained above, Carlsons indictment for
second-degree murder was based on the theory that
Carlson caused Featherlys death while engaging in
conduct that, under the circumstances, manifest[ed]
extreme indifference to the value of human life. AS
11.41.110(a)(2).
During the jurys deliberations at Carlsons
second trial, the jury asked for further explanation of
the term extreme indifference. In response to the
jurys request, the trial judge Superior Court Judge
Donald D. Hopwood conferred with the parties outside
the presence of the jury.
The prosecutor asked Judge Hopwood to give
the jury a supplemental instruction on extreme
indifference drawn from the instruction that the Alaska
Supreme Court approved in State v. Johnson, 720 P.2d
37, 39 (Alaska 1986). The instruction at issue in
Johnson was:
[A]n act performed under circumstances
manifesting an extreme indifference to the
value of human life is an act which creates a
very high degree of risk and which exhibits
an extreme disregard of social duty. It must
be more than a criminally negligent act and
more than a reckless act. ... [A]n example
of conduct covered by this provision would be
shooting through a tent under circumstances
[where] the defendant did not know a person
was inside[,] or persuading a person to play
[R]ussian roulette.
Johnson, 720 P.2d at 38 n. 3.
The prosecutor suggested two
additions to this instruction. First, the
prosecutor asked Judge Hopwood to add the
following sentence from the 1978 legislative
commentary to AS 11.41.110(a)(2): The
defendant is only required to intend to
perform the act; there is no requirement that
he intend to cause death or that he know that
his conduct is substantially certain to cause
death.3 Second, the prosecutor recommended
that the words intend to perform in the
sentence just quoted be changed to knowingly
perform, to bring the wording of the
legislative commentary in line with the 1988
amendment to the wording of
AS 11.41.110(a)(2).
(In SLA 1988, ch. 66, 1, the
legislature changed the phrase intentionally
performs an act to knowingly engages in
conduct. The legislature thus ratified the
interpretation of the statute that this Court
adopted in Neitzel v. State, 655 P.2d 325,
332-33 (Alaska App. 1982): AS 11.41.
110(a)(2) requires that the actor ...
knowingly engage in conduct causing the death
of another which in light of the
circumstances is reckless to the point that
it manifests an extreme indifference to the
value of human life.)
Although Judge Hopwood initially
expressed concern that the prosecutors
proposed instruction tended to blur the
distinction between knowing conduct and
circumstances manifesting an extreme
indifference to the value of human life, the
judge ultimately approved the proposed
instruction. Accordingly, Judge Hopwood gave
the jury the following supplemental
instruction:
Conduct performed under circumstances
manifesting an extreme indifference to the
value of human life is conduct which creates
a very high degree of risk and which exhibits
an extreme disregard of social duty. It must
be more than criminally negligent conduct and
more than reckless conduct.
Examples of this sort of conduct are
shooting through a tent under circumstances
where the defendant did not know a person was
inside, or persuading a person to play
Russian roulette. The defendant is only
required to knowingly perform the act; there
is no requirement that he intend[s] to cause
death or that he knows that his conduct is
substantially certain to cause death.
On appeal, Carlson claims that this
instruction impermissibly blurred the
distinction between the conduct and the
culpable mental state that must be proved for
second-degree murder under subsection (a)(2).
Carlson also claims that the instruction
affirmatively misstated the law of second-
degree murder: he contends that the first
listed example of conduct constituting
extreme indifference to the value of human
life (shooting into a tent) does not, in
fact, fall within the definition of extreme
indifference. Finally, Carlson argues that
Judge Hopwood erred by giving any instruction
defining the phrase extreme indifference to
the value of human life. None of these
claims was preserved in the trial court.
When the parties discussed the
prosecutors proposed supplemental
instruction, Carlsons attorney stated that he
did not object to the language drawn from the
Johnson opinion. Although the defense
attorney remarked that he [was] always
nervous about defining these terms, the
defense attorney then added, I dont object to
[the Johnson instruction] because I think it
[accurately] conveys ... the meaning of ...
extreme indifference to the value of human
life.
As explained above, the prosecutor
proposed to augment the Johnson language with
a sentence that contained examples from the
legislative commentary. When Judge Hopwood
expressed concern that this additional
sentence might tend to blur the distinction
between knowing conduct and circumstances
manifesting an extreme indifference to the
value of human life, Carlsons attorney agreed
that the instruction should not vary from the
instruction in Johnson [because] that
[language] has been approved by the state
supreme court. The defense attorney also
told Judge Hopwood, I think youre correct ...
that [the additional sentence drawn from the
legislative commentary] mixes two elements.
I think its dangerous to do that.
However, when Judge Hopwood
ultimately decided to include the additional
sentence from the commentary, Carlsons
counsel did not object. Judge Hopwood read
aloud the entire instruction, including the
additional sentence from the commentary, and
then he asked both parties whether they had
further comment. Carlsons counsel replied,
No, Your Honor. And when, after a short
recess, Judge Hopwood presented the parties
with printed copies of the supplemental
instruction, Carlsons attorney expressly
stated that he had no objection.
Because Carlson did not object to
the supplemental instruction, the question is
whether this supplemental instruction
constituted plain error.
Carlson contends that the
challenged instruction impermissibly mixes
the conduct element and the culpable mental
state element of extreme indifference murder.
He argues that the impermissible mixing is
evident from the fact that the supplemental
instruction refers to conduct or act seven
times. From this, Carlson concludes that the
supplemental instruction misleadingly focused
on conduct, when the jurys question related
to the culpable mental state of extreme
indifference to the value of human life.
But, as we noted in Smith v. State,
many of the offenses in the Alaska criminal
code are defined in terms of a result and a
culpable mental state, without requiring
proof of any particular conduct. For
instance, manslaughter does not require proof
of any particular type of conduct, but it
does require proof that the defendant acted
intentionally, knowingly, or recklessly with
respect to the possibility that the
defendants conduct might cause another
persons death, and it requires proof that the
defendants conduct caused the death of
another.4
Like manslaughter, the offense of
second-degree murder under an extreme
indifference theory does not require proof of
any specific conduct. As we explained in
Neitzel, this offense requires proof (1) that
the actor caused the death of another through
knowing conduct (any type of conduct), and
(2) that, under the circumstances, the
defendants engaging in this conduct
demonstrated such a high degree of
recklessness as to manifest extreme
indifference to the value of human life.5
Carlson criticizes the supplemental
instruction for repeatedly using the words
conduct and act. But, as the preceding two
paragraphs of this opinion illustrate, it is
quite difficult (if not impossible) to speak
about concepts such as recklessness or
extreme indifference to the value of human
life without making generic references to a
persons conduct or actions. We find no error
(much less plain error) in the supplemental
instructions use of the words conduct and
act.
Carlson also claims that the
supplemental instruction was affirmatively
misleading regarding the element of extreme
indifference to the value of human life. He
notes that the supplemental instruction
refers to the example of a persons shooting
into a tent when the person did not know
whether the tent was occupied. Carlson
claims that this example is erroneous, and
that the proper example would be shooting
into a house or tent when the shooter knew
that the house or tent was occupied.
Carlsons argument is based on a
mixing-up of the legislative commentaries to
subsections (a)(1) and (a)(2) of AS
11.41.110.
Subsection (a)(1) of the statute
declares that a person commits second-degree
murder if, [acting] with intent to cause
serious physical injury to another person or
knowing that [their] conduct is substantially
certain to cause death or serious physical
injury to another person, the person causes
the death of any person. In its commentary
to subsection (a)(1), the legislature cites
the example of [s]hooting into a crowded room
without an intent to cause death or serious
physical injury as illustrative of the type
of conduct that would be punishable under the
second clause of subsection (a)(1).6
But with regard to subsection
(a)(2) of the statute, the legislative
commentary does indeed cite the examples
described in the supplemental instruction in
Carlsons case: the examples of shooting into
a tent when the shooter does not know whether
the tent is occupied, and of encouraging
another person to play Russian
roulette.7 Carlson is simply wrong when he
asserts that the supplemental instruction
mischaracterizes the examples contained in
the legislative commentary.
Finally, Carlson argues that it was
error to give the jury any supplemental
definition of extreme indifference to the
value of human life. Carlson points out
that, in Neitzel, this Court stated that
trial judges should abide by the language of
the statute when instructing juries on the
culpable mental state required for extreme
indifference second-degree murder, and that
judges should avoid the phrases used at
common law to define the culpable mental
state for unintended murder phrases such as
depraved heart, or wicked disposition, or
wicked and depraved mind.8
This remains salutary advice. But
the supplemental instruction in Carlsons case
did not employ any of these nebulous common-
law phrasings. Rather, the supplemental
instruction was drawn directly from the
examples contained in the legislative
commentary to AS 11.41.110(a)(2). The
supplemental instruction informed the jury of
two situations that, according to the
legislature, are examples of the kind of
conduct encompassed by the offense of extreme
indifference second-degree murder. This was
the very clarification that the supreme court
approved in Johnson. It was not error.
For these reasons, we reject
Carlsons attacks on the supplemental jury
instruction, and we accordingly affirm his
conviction for second-degree murder.
Judge Hopwoods authority to sentence Carlson to serve
40 years for second-degree murder, a sentence that
exceeds the benchmark range of 20 to 30 years
announced by this Court in Page v. State
With the exception of certain murders of
children, the penalty for second-degree murder in
Alaska is currently 10 to 99 years imprisonment.
AS 12.55.125(b). However, Carlson faced a penalty
range of 5 to 99 years because he committed his
offense in 1998, when the minimum penalty for
second-degree murder was 5 years imprisonment.9
Shortly after Alaskas current criminal code
went into effect, in Page v. State, 657 P.2d 850
(Alaska App. 1983), this Court was asked to review the
sentence of a defendant who received the maximum
penalty for second-degree murder 99 years imprison
ment. In assessing whether this sentence was
excessive, we examined the second-degree murder
sentences that had previously been reviewed by the
supreme court and by this Court.10 Based on our review
of those previous sentences and the facts of those
previous cases, we established a benchmark sentencing
range for second-degree murder: we concluded that a
first felony offender convicted of a typical second-
degree murder should receive a sentence of between 20
and 30 years to serve.11
In the two decades since Page was decided, we
have continued to adhere to this 20- to 30-year
benchmark range.12
The legal effect of the Page benchmark range
is that sentencing judges who wish to impose more than
30 years to serve for the crime of second-degree murder
must explain why they view the defendant as having a
worse background than that of a typical first felony
offender, or why they view the defendants crime as
worse than a typical second-degree murder. But as we
explained in Page, the benchmark sentencing range can
only be a guide, not a rule because the legislature
clearly could have made presumptive sentencing
applicable to second-degree murder[], but the
legislature instead elected to retain indeterminate
sentencing for this offense.13
Moreover, Page does not require any
particular finding to justify a sentence above the
benchmark range. As we have repeatedly explained, a
sentencing judge can exceed the 20- to 30-year range
for any sound reason.14
In Carlsons case, based on an evaluation of
Carlsons background and conduct, Judge Hopwood
concluded that Carlsons sentence should exceed the Page
benchmark range. (He sentenced Carlson to serve 40
years.) Carlson argues that the judges action violated
his right to jury trial under the Sixth and Fourteenth
Amendments to the federal Constitution, as interpreted
by the United States Supreme Court in Apprendi v. New
Jersey, Blakely v. Washington, and United States v.
Booker.15 Carlson contends that he was entitled to
have a jury decide whether a sentence above the Page
benchmark range was justified.
As we explain in detail later on, the basic
principle behind Apprendi, Blakely, and Booker is to
preserve the right of jury trial in the face of
legislative attempts to divide offenses into elements
(facts to be proved at trial) and sentencing factors
(facts to be proved at the sentencing hearing).
Apprendi, Blakely, and Booker hold that when the
maximum punishment to which a defendant can be
subjected varies according to the defendants degree of
offense, a defendant has the right to demand that a
jury decide their degree of offense, and the right to
demand that the factors which distinguish one degree of
offense from another be proved beyond a reasonable
doubt.
The Page benchmark range does not involve
this legal principle. As we noted in Page, the
legislature exempted second-degree murder from the
presumptive sentencing laws that were enacted in 1980.
The legislature retained traditional sentencing for
second-degree murder: this offense carries a range of
punishment of 10 to 99 years imprisonment (5 to 99
years at the time of Carlsons offense).16 Within this
range, sentencing is indeterminate; that is, the
legislature has entrusted the sentencing decision to
the judges discretion.
Page governs a sentencing judges exercise of
discretion within this 10- to 99-year sentencing range
by requiring the judge to state some good reason for
imposing a greater-than-average sentence. But this
sentencing decision is made only after a jury has
determined, beyond a reasonable doubt, that the
defendant is indeed guilty of second-degree murder or
after the defendant has waived the right to trial and
has pleaded guilty. This jury verdict or guilty plea
is the event that, by law, subjects the defendant to
the 10- to 99-year penalty provided for this offense.
Page does not alter the roles of the jury and the
sentencing judge in this process, nor does it amend
their spheres of authority within the criminal justice
system.
While a sentencing judges decision may
involve an assessment of the facts of the defendants
particular offenses, the judges decision ultimately
rests on the answers to broader questions: the
underlying causes of the defendants criminal behavior,
the defendants likelihood of recidivism, and the
defendants amenability to rehabilitative efforts.
These questions have traditionally been answered by a
sentencing judge rather than a jury.
Accordingly, we conclude that the Sixth
Amendment right to jury trial (and to proof beyond a
reasonable doubt) does not apply to a sentencing judges
decision to impose a sentence that exceeds the Page
benchmark range.
(a) The argument that can be made in favor of
Carlsons position
Although we ultimately reject Carlsons Sixth
Amendment argument, we acknowledge that his contention
is reasonably debatable. In Page, this Court declared
that a judge must have a sound reason for imposing a
second-degree murder sentence of more than 30 years to
serve some good reason to distinguish the defendant
from a typical first felony offender, or to distinguish
the defendants crime from a typical second-degree
murder.17 At first blush, this might resemble the kind
of sentencing scheme that was at issue in Blakely v.
Washington.
As we explain in more detail later, the
problem presented in Blakely was that Washington law
provided a technical maximum sentence for Blakelys
crime, but Blakelys sentencing judge had no authority
to impose that maximum sentence unless the judge found
certain aggravating factors. The United States Supreme
Court held that Blakelys true maximum sentence (for
Sixth Amendment purposes) was the lesser sentence that
represented the ceiling on the judges sentencing
authority in the absence of aggravating factors.
Carlson and other similarly situated
defendants might plausibly argue that Page establishes
a similar sentencing scheme governing second-degree
murder that even though the technical maximum sentence
for second-degree murder is 99 years imprisonment, Page
establishes a 30-year ceiling that a sentencing judge
can not exceed unless the judge finds some good reason
for distinguishing the offender or the offense from the
typical first felony offender who commits a typical
second-degree murder.
To determine whether this analogy holds true
to decide whether the sentencing finding required by
Page is the same sort of finding that was at issue in
Apprendi, Blakely, and Booker we must examine the
principle underlying the decisions in Apprendi,
Blakely, and Booker, and then we must assess whether
that principle is violated when a sentencing court
makes the decision to impose a sentence that exceeds
the Page benchmark range.
(b) The principle underlying Apprendi, Blakely,
and Booker: preserving the right to jury trial in
the face of modern determinate sentencing laws
In Apprendi v. New Jersey, the Supreme Court
assessed the constitutionality of a provision of state
law (New Jerseys hate crime law) which increased the
maximum sentence for various offenses. The defendant
in Apprendi was convicted of possessing a firearm for
an unlawful purpose. The normal maximum sentence for
this crime was 10 years imprisonment, but the hate
crime law authorized a sentencing judge to impose an
extended term of 20 years if the judge found (by a
preponderance of the evidence) that the defendant had
acted for the purpose of intimidating other people
based on their race, religion, ethnic background,
sexual orientation, etc..18
The New Jersey legislature and courts did not
view the hate crime law as defining a separate
substantive offense; rather, the law was seen as a
sentencing provision that increased the sentencing
range for a whole class of offenses, based on proof of
a particular sentencing factor (the defendants motive
for committing the underlying crime).19 Nevertheless,
the Supreme Court declared that this type of sentencing
provision implicated a defendants right to notice, to
trial by jury, and to proof beyond a reasonable
doubt.20 The Court explained:
Any possible distinction between an
element of a felony offense and a sentencing
factor was unknown to the practice of
criminal indictment, trial by jury, and
judgment by court as it existed during the
years surrounding our Nations founding. As a
general rule, criminal proceedings were
submitted to a jury after being initiated by
an indictment containing all the facts and
circumstances which constitute the offence,
... stated with such certainty and precision,
that the defendant ... may [...] determine
the species of offence they constitute [and]
prepare his defence accordingly ... and that
there may be no doubt as to the judgment
which should be given, if the defendant be
convicted.
Apprendi, 530 U.S. at 478, 120 S.Ct. at 2356
(quoting J. Archbold, Pleading and Evidence
in Criminal Cases (15th ed. 1862), p. 44)
(emphasis in the Apprendi opinion).
The Supreme Court italicized this
last portion of the quote from Archbold to
emphasize that, in the eighteenth and
nineteenth centuries, there was an invariable
linkage of punishment with crime.21 In the
words of Blackstone (quoted in Apprendi), a
sentencing court was obliged to pronounce
that judgment, which the law hath annexed to
the crime.22
The Court explained that it was
compelled to take action because, in recent
years, new forms of sentencing statutes had
begun to erode [t]he historic link between
verdict and judgment.23 The problem, as
explained by the Court, was that these
statutes introduced the novelty of a ...
scheme that removes the jury from the
determination of a fact that, if found,
exposes the criminal defendant to a penalty
exceeding the maximum he [might] receive if
punished according to the facts reflected in
the jury verdict alone.24
We do not suggest that trial practices
cannot change [over the] centuries ... . But
[criminal] practice must ... adhere to the
basic principles undergirding the
requirements of trying to a jury all facts
necessary to constitute a statutory offense,
and proving those facts beyond a reasonable
doubt.
Apprendi, 530 U.S. at 483-84, 120 S.Ct. at
2359 (emphasis added).
This italicized language is, we
believe, key to understanding the Apprendi
decision. The Supreme Court viewed the New
Jersey hate crime law as, in essence,
creating a new group of statutory offenses
new, aggravated versions of the various
underlying offenses to which the hate crime
law applied. The Court declared that,
whatever might be said in favor of the
constitutionally novel and elusive
distinction between elements [of an offense]
and sentencing factors, ... the relevant
inquiry is one not of form, but of effect
does the required finding [i.e., the
defendants motive for committing the
underlying offense] expose the defendant to a
greater punishment than that authorized by
the jurys ... verdict [finding the defendant
guilty of that underlying offense]?25
Having reached the conclusion that
New Jerseys hate crime law actually created a
new, aggravated form of the underlying crime
of possession of a firearm for an unlawful
purpose, the Supreme Court then declared that
it was unconstitutional for the government of
New Jersey to segregate one element of this
offense, call it a sentencing factor, and
then have that element tried to the
sentencing judge under a preponderance of the
evidence standard.26
In Blakely v. Washington,27 the
Supreme Court extended the rationale of
Apprendi to the context of determinate
sentencing.
The defendant in Blakely pleaded
guilty to second-degree kidnapping, a crime
that carried a maximum sentence of 10 years
imprisonment under Washington law.28
However, within this 10-year sentencing
range, a judges sentencing discretion was
confined by a series of criteria that either
called for particular sentencing ranges or
that augmented or reduced the otherwise
prescribed sentencing ranges. Thus, for
instance, the defendant in Blakely was
subject to a standard sentencing range of
slightly more than 4 years (49 to 53 months)
because, among class B felonies, second-
degree kidnapping had a seriousness level
of V, and because Blakely had an offender
score of 2, and because Blakelys use of a
firearm during the commission of the
kidnapping subjected him to a 36-month
enhancement of the otherwise prescribed
range.29
Despite this detailed sentencing
calculus, Washington law authorized
sentencing judges to impose a sentence above
the prescribed sentencing range if the judge
found substantial and compelling reasons
justifying an exceptional sentence.30 In
Blakelys case, the sentencing judge exceeded
the prescribed range by more than 3 years
(Blakely received 7 years to serve) because
the judge found that Blakely had acted with
deliberate cruelty.31
The Supreme Court held that, under
Washingtons sentencing laws, the finding of
deliberate cruelty was legally necessary to
support the punishment that Blakely
received32 and that, for this reason,
Blakely was entitled to have a jury decide
whether the state had proved this fact beyond
a reasonable doubt:
[T]he statutory maximum [sentence] for
Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the
facts reflected in the jury verdict or
admitted by the defendant. ... In other
words, the relevant statutory maximum is not
the maximum sentence a judge may impose after
finding additional facts, but the maximum he
may impose without any additional findings.
When a judge inflicts punishment that the
jurys verdict alone does not allow, ... the
judge exceeds his proper authority.
Blakely, 542 U.S. at 303-04, 124 S.Ct. at
2537 (emphasis in the original).
Writing for the majority in
Blakely, Justice Scalia explained that the
Courts decision was based on the need to give
intelligible content to the right of jury
trial.33
[This] right is no mere procedural formality,
but a fundamental reservation of power in our
constitutional structure. ... [J]ury trial
is meant to ensure [the peoples ultimate]
control in the judiciary. ... Apprendi
carries out this design by ensuring that the
judges authority to sentence derives wholly
from the jurys verdict. Without that
restriction, the jury would not exercise the
control that the Framers intended.
Blakely, 542 U.S. at 305-06, 124 S.Ct. at
2538-39 (citations omitted).
Justice Scalia then emphasized that
the problem was not judicial fact-finding per
se, but rather legislative encroachment on
the right to jury trial.
[T]he Sixth Amendment ... is not a limitation
on judicial power, but a reservation of jury
power. It limits judicial power only to the
extent that the claimed judicial power
infringes on the province of the jury.
Blakely, 542 U.S. at 308, 124 S.Ct. at 2540.
Thus, under a system of
indeterminate sentencing i.e., a sentencing
scheme in which the judge has the discretion
to impose any term of imprisonment within a
specified range of sentences a sentencing
judge does not violate the Sixth Amendment
when the judge engages in fact-finding when
choosing a sentence within the specified
range:
Indeterminate sentencing ... increases
judicial discretion, ... but not at the
expense of the jurys traditional function of
finding the facts essential to lawful
imposition of the penalty. ...
[I]ndeterminate [sentencing] schemes involve
judicial factfinding, in that a judge ... may
implicitly rule on those facts he deems
important to the exercise of his sentencing
discretion. But [these] facts do not pertain
to whether the defendant has a legal right to
a lesser sentence and that makes all the
difference [on the issue of] judicial
impingement upon the traditional role of the
jury ... . In a system that says the judge
may punish burglary with [a sentence of] 10
to 40 years, every burglar knows he is
risking 40 years in jail. [But in] a system
that punishes burglary with a 10-year
sentence, with another 30 added for use of a
gun, the burglar who enters a home unarmed is
entitled to no more than a 10-year sentence
and by reason of the Sixth Amendment[,] the
facts [that authorize any higher sentence]
must be found by a jury.
Blakely, 542 U.S. at 309, 124 S.Ct. at 2540
(emphasis in the original).
The Supreme Courts most recent
decision in this area, United States v.
Booker,34 contains an even more explicit
explanation of the rationale underlying
Apprendi and Blakely. Justice Stevens,
writing for the majority, emphasized that the
key constitutional problem was the erosion of
the jurys traditional role in determining a
criminal defendants level of guilt, as more
and more states (and the federal government)
adopted determinate sentencing schemes
sentencing schemes that gave judges the power
to resolve the factual disputes that would
determine the upper limit of the defendants
punishment:
It is quite true that[, under
indeterminate sentencing schemes,] judges
commonly determined facts justifying [their]
choice of a heavier sentence ... . [But in]
1986, [we] first recognized a new trend in
the legislative regulation of sentencing[:
sentencing laws under which] facts selected
by legislatures ... not only authorized, or
even mandated, heavier sentences than would
otherwise have been imposed, but increased
the range of sentences possible for the
underlying crime. ...
The effect of the increasing emphasis on
facts that enhanced [the permitted]
sentencing ranges ... was to increase the
judges power and diminish that of the jury.
It became the judge, not the jury, that
determined the upper limits of sentencing,
and the facts [that] determined [the
sentencing range] were not required to be
raised before trial or proved by more than a
preponderance [of the evidence].
As the [sentencing] enhancements became
greater, the jurys finding of the underlying
crime became less significant. And the
[sentence] enhancements became very serious
indeed [ in some instances, dwarfing the
initially prescribed sentence].
Booker, 543 U.S. at __, 125 S.Ct. at 751
(citations omitted).
Justice Stevens explained that,
given this development in sentencing law, the
Court was faced with the issue of preserving
[the] ancient guarantee [of jury trial] under
a new set of circumstances:
The new sentencing practice forced the Court
to address the question [of] how the right of
jury trial could be preserved [so that it
would continue to guarantee], in a meaningful
way[,] ... that the jury would still stand
between the individual and the power of the
government under the new sentencing regime.
[I]t is the new circumstances ... that have
led us to the answer ... developed in
Apprendi and subsequent cases[,] culminating
with this one. It is an answer not motivated
by Sixth Amendment formalism, but by the need
to preserve Sixth Amendment substance.
Booker, 543 U.S. at __, 125 S.Ct. at 752.
With this explanation of Apprendi,
Blakely, and Booker as our guide, we now turn
to the question at hand: Under the Sixth
Amendment, does a defendant have the right to
insist that a jury decide whether the
defendant should receive a sentence for
second-degree murder that exceeds the Page
benchmark range of 20 to 30 years?
(c) Why we conclude that the right to jury trial
announced in Apprendi, Blakely, and Booker does not
apply to a sentencing judges decision to exceed the
Page benchmark range
The Supreme Courts decisions in Apprendi,
Blakely, and Booker all ultimately deal with the same
issue: the limitation that the Sixth Amendment places
on the governments power to define criminal offenses.
To preserve the right to jury trial guaranteed by the
Sixth Amendment, the Supreme Court has ruled that
governments can not define criminal offenses in a
manner that allows the prosecutor to present a stripped-
down case to the jury and then, following the
defendants conviction, allows the sentencing judge to
decide other factual issues which (if proved) will lift
the sentencing ceiling effectively convicting the
defendant of an aggravated degree of the underlying
offense.
But as the Supreme Court has repeatedly
emphasized, this trilogy of cases does not affect the
legality of judicial fact-finding in the context of
indeterminate sentencing that is, in a sentencing
scheme where the penalty for a crime is a range of
imprisonment, and the judges task is to decide how to
exercise the sentencing discretion afforded by this
range of imprisonment. In this context, as Justice
Scalia explained in Blakely, the facts found by the
sentencing judge do not pertain to whether the
defendant has a legal right to a lesser sentence and
that makes all the difference [as to whether the judges
fact-finding] impinge[s] upon the traditional role of
the jury.35
Under Alaska law, the fact that a defendant
has been found guilty of second-degree murder
automatically subjects the defendant to a minimum
sentence of 10 years imprisonment and a maximum
sentence of 99 years imprisonment.36 Within this range
of punishment, sentencing is indeterminate; that is, no
further fact-finding is necessary to invest the
sentencing judge with the authority to impose any
sentence within this range.
A judges decision regarding what sentence to
impose within the 10- to 99-year range for second-
degree murder does not hinge on any particular fact
relating to the defendants conduct, mental state, or
criminal history, or to any other circumstance
surrounding the defendants crimes. When the sentencing
judge engages in fact-finding on any of these issues,
this fact-finding is not done to establish the judges
legal authority to impose the selected sentence.
Rather, this fact-finding is done to explain to the
defendant, to the public, and ultimately to a reviewing
court why the judge exercised their sentencing
discretion in a particular manner.
Earlier, we described the argument that could
be made in favor of Carlsons position in this appeal.
The argument is this: An Alaska sentencing judges
discretion to impose a sentence within the 10- to 99-
year range for second-degree murder is not unbounded.
In Page, this Court declared that a judge must have a
sound reason for imposing a second-degree murder
sentence of more than 30 years to serve some good
reason to distinguish the defendant from a typical
first felony offender, or to distinguish the defendants
crime from a typical second-degree murder. Because the
sentencing judge must have some good reason to exceed
the Page ceiling of 30 years, a defendant has the right
to demand that a jury decide this question, and the
right to demand that the government prove the grounds
for a sentence exceeding 30 years beyond a reasonable
doubt.
We reject this argument for three reasons.
First, the benchmark sentencing range
announced in Page does not implicate the constitutional
concern addressed in Apprendi, Blakely, and Booker. As
explained above, these three decisions are aimed at
preventing the government from subverting the right to
jury trial by artificially dividing crimes into
elements (facts that must be proved to a jury beyond a
reasonable doubt) and sentencing factors (facts which
increase the defendants maximum punishment and which
can be proved to a judge under some lesser standard).
The Page benchmark range has nothing to do with
reshaping the role of the jury in the criminal justice
process. Rather, Page is this Courts attempt to
regulate the expansive sentencing power that the
legislature has given to judges who sentence defendants
for second-degree murder. Page requires sentencing
judges to think, and to explain, before they utilize
the full extent of that sentencing power.
Second, the finding required by Page is not
the same type of finding that was at issue in Apprendi,
Blakely, and Booker. To a large degree, this
conclusion follows from what we said in the previous
paragraph.
The constitutional problem in Apprendi,
Blakely, and Booker was the attempt by various
governments to segregate certain aspects of a crime
facts that would traditionally be viewed as elements of
the crime (facts relating to the defendants conduct,
mental state, or criminal history, or other
circumstances surrounding the crime) and assign the
decision of these facts to the sentencing judge by
declaring these facts to be sentencing factors.
In contrast, the finding required by Page
does not necessarily turn on any factual aspect of the
defendants present offenses. Although a sentencing
judge who complies with Page may mention or even rely
on the facts of the defendants present offenses, the
ultimate question posed by Page is not one of
historical fact. Rather, Page requires sentencing
judges to explain their conclusions regarding the
proper length of a defendants sentence. Under Alaska
law, this sentencing conclusion must be based on a
weighing of the defendants conduct and background
against, or in light of, the various sentencing goals
first announced in State v. Chaney, 477 P.2d 441, 444
(Alaska 1970), and now codified in AS 12.55.005.37
Rather than being a finding of historical
fact, the finding required by Page (some sound reason
for concluding that the defendant should receive a
sentence longer than 30 years) is partly a weighing of
imponderables and partly a prediction of the defendants
future behavior, based on the judges assessment of the
underlying causes of the defendants criminal behavior,
the defendants likelihood of recidivism, and the
defendants amenability to rehabilitative efforts. In
other words, this finding does not look like any of the
findings that are traditionally entrusted to the jury
under our system of justice (save in those few states
which give sentencing authority to juries).
(Accord: People v. Black, 113 P.3d 534, 548-
550; 29 Cal.Rptr.3d 740, 756-58 (Cal. 2005); State v.
Rivera, 102 P.3d 1044, 1054-58, 1059-1062 (Haw. 2004);
People v. Rivera, 833 N.E.2d 194, 199-200; 800 N.Y.S.2d
51, 56-57 (N.Y. 2005); State v. Lett, 829 N.E.2d 1281,
1290-92 (Ohio App. 2005) (en banc); State v. Hughes,
110 P.3d 192, 202 (Wash. 2005).)
Third, and finally, it makes no sense to
require the government to prove the necessity of a
particular sentence beyond a reasonable doubt. Alaska
law recognizes that sentencing is not an exact science.
As our supreme court has said, appellate sentence
review in this state is founded on two concepts:
first, that reasonable judges, confronted with
identical facts, can and will differ on what
constitutes an appropriate sentence; second, that
society is willing to accept these sentencing
discrepancies, so long as a judges sentencing decision
falls within a permissible range of reasonable
sentences.38 Because a sentencing decision involves
the weighing of imponderables and a prediction of
future behavior, it is self-defeating and fruitless to
ask the government to prove that, beyond any reasonable
doubt, a particular sentence is necessary.
For these reasons, we conclude that the Page
benchmark sentencing range does not implicate the Sixth
Amendment concerns expressed in Apprendi, Blakely, and
Booker. Accordingly, we conclude that a defendant
convicted of second-degree murder has no right to a
jury trial on the question of whether they should or
should not receive a sentence above the Page benchmark
range.
Judge Hopwoods findings regarding the States proposed
aggravating factors from AS 12.55.155(c)
Because second-degree murder is an
unclassified felony, Carlson was not subject to
presumptive sentencing on that charge; instead, he was
subject to indeterminate sentencing within a range of 5
to 99 years imprisonment.39
And, because Carlson was a first felony
offender, he was not subject to presumptive sentencing
on the other charges of evidence tampering and weapons
misconduct. Both of these offenses are class C
felonies and, at the time of Carlsons crimes, there was
no presumptive term for first felony offenders
convicted of a class C felony.40 However, Carlsons
sentencing was governed by former AS 12.55.125(k)(2),
which declared that, in the absence of aggravating
factors, a first felony offender convicted of a class C
felony could receive no greater time to serve than the
presumptive term that would apply to a second felony
offender convicted of the same offense in Carlsons
case, 2 years.41
To provide the legal basis for sentences
exceeding 2 years to serve for the various counts of
evidence tampering and third-degree weapons misconduct,
the State proposed two aggravating factors under AS
12.55.155(c): (c)(10) that Carlsons conduct was among
the most serious within the definitions of these
offenses; and (c)(19) that Carlson had a prior
delinquency adjudication for conduct that would have
been a felony if he had been an adult.
Judge Hopwood found that the State had proved
both of these aggravators by clear and convincing
evidence. However, despite the proof of these
aggravators, when Judge Hopwood sentenced Carlson for
the five counts of evidence tampering and the two
counts of third-degree weapons misconduct, he did not
exceed the 2-year sentencing ceiling codified in former
AS 12.55.125(k)(2). In fact, Judge Hopwood gave
Carlson only 1 year to serve (i.e., 2 years with 1 year
suspended) on each count.
(In addition, although second-degree murder
is not governed by presumptive sentencing, the State
proposed one aggravator relevant to that crime as well:
(c)(4) that Carlson employed a dangerous instrument in
furtherance of the homicide. Judge Hopwood found that
the State had proved this aggravator. The legality of
this finding is also a moot issue both because second-
degree murder is not governed by presumptive
sentencing,42 and because Judge Hopwood declared that
he would not give any weight to this aggravator.)
On appeal, Carlson contends that Judge
Hopwood committed various legal errors when he found
the two aggravators relating to the offenses of
evidence tampering and weapons misconduct. These
contentions are moot. As just explained, Carlson
received sentences of 2 years with 1 year suspended on
each of the counts of evidence tampering and weapons
misconduct. Judge Hopwood had the authority to impose
these sentences even in the absence of any
aggravators.43
This remains true even though Judge Hopwood
imposed these seven sentences consecutively. Former AS
12.55.125(k)(2), otherwise known as the Austin rule,44
limited Judge Hopwoods sentencing authority with
respect to each count, but not with respect to the
decision to run the separate sentences consecutively or
concurrently. See Castle v. State, 767 P.2d 219, 221
(Alaska App. 1989), where we distinguished between the
Austin rule, which limits sentencing on individual
counts, and the rule announced in Farmer v. State,45
which requires good cause, based on the
totality of the circumstances, for imposition of
consecutive sentences that, in combination, exceed the
Austin limit for any one count.
Carlsons argument that his sentence is excessive
For the crime of second-degree murder,
Carlson was sentenced to 50 years imprisonment with 10
years suspended i.e., 40 years to serve. For each of
the five counts of evidence tampering and the two
counts of weapons misconduct, Carlson received
consecutive sentences of 2 years imprisonment with 1
year suspended. Thus, Carlsons composite sentence is
64 years imprisonment with 17 years suspended i.e., 47
years to serve.
Carlson argues that his sentence for second-
degree murder improperly exceeds the 20- to 30-year
benchmark sentencing range that this Court established
in Page. He also argues that his composite sentence of
47 years to serve is excessive.
Carlsons argument regarding the Page
benchmark is easily resolved. The Page benchmark
sentencing range was intended to demarcate the range of
actual imprisonment (time to serve) that a sentencing
judge should impose on a typical first felony offender
convicted of a typical second-degree murder.46 Carlson
was not a typical first felony offender because he had
a prior delinquency adjudication for felony conduct.
Moreover, Judge Hopwood found that Carlson had
repeatedly perjured himself at his two trials.
Addressing Carlsons testimony that a black man named
Bee had shot Featherly, Judge Hopwood declared that
Carlsons story was patently false: I listened to it
twice, [and] I dont believe a word of it.
As we explained above, a sentencing judge is
authorized to exceed the Page benchmark range for any
sound reason. Both Carlsons prior history of
delinquency and his repeated perjury are sufficiently
sound reasons to exceed the Page benchmark range.
The real question is not whether Judge
Hopwood was authorized to impose a sentence greater
than 30 years to serve (the upper end of the Page
benchmark range) for the crime of second-degree murder;
rather, the question is whether Judge Hopwood was
clearly mistaken in sentencing Carlson to a composite
term of 47 years to serve.47
Carlson was a youthful offender: he was just
shy of his eighteenth birthday when he shot Featherly,
and he was nineteen years old when he was sentenced.
Moreover, Judge Hopwood stated that he did
not view Carlsons conduct in this case as an aggravated
instance of second-degree murder. Although Judge
Hopwood found that Carlson [held] a firearm within an
inch of Mr. Featherlys head, ... with his finger on the
trigger, ... [as] the car passed [over] a bumpy road,
the judge stated that he could not find that Carlson
knew the gun was loaded. The judge further declared
that, although Carlsons culpable mental state fell
within the statutory definition of extreme indifference
to the value of human life, Carlsons degree of
indifference was not highly extraordinary beyond the
[statutory] definition.
These two factors Carlsons youth, and the
fact that his conduct was typical of second-degree
murders militate against an atypically long sentence
of imprisonment. But other aspects of Carlsons conduct
convinced Judge Hopwood that Carlson posed a particular
danger to the public.
As explained above, Carlson had a prior
delinquency adjudication for conduct that would have
been a felony if committed by an adult. That
delinquency adjudication was for the offense of theft
but theft only begins to describe what Carlson did.
Carlsons juvenile probation officer testified
at his sentencing hearing in this case. The probation
officer told the court that, in 1994, at the age of
thirteen, Carlson and some of his friends broke into a
neighbors home. In addition to stealing property from
inside the house, they also ransacked it breaking
pictures, throwing paint [and] Tabasco sauce; [pouring]
bleach and cleansers ... on the floor, [pouring]
chemicals in[to] the aquarium, and ... urinat[ing] on
the bedding. The damage totaled over $48,000.
Carlson went to trial (as a juvenile) on
charges of first-degree burglary, second-degree
criminal mischief, and second-degree theft. Carlson
took the stand and denied any involvement in these
crimes. The jury hung. Later, Carlson agreed to plead
guilty to second-degree theft in exchange for dismissal
of the other two charges and a promise that the State
would not prosecute him for perjury.
But even burglary, theft, and criminal
mischief do not fully describe Carlsons conduct for,
after the break-in, Carlson threatened the family whose
house he and his friends had burglarized. As Judge
Hopwood noted in his sentencing remarks, there were
several occasions when Carlson saw the wife on the
street and gave her menacing looks or called her
debasing names. Carlson also stole the familys dog and
hid the animal in an abandoned house. In the end, the
family felt so threatened that they sold their house
and moved to another neighborhood.
Judge Hopwood concluded that Carlsons conduct
toward the family was terrorizing behavior, and he
added, I dont use that word lightly. The judge stated
that [this] series of events ... tells me as much about
[Carlson], and what I should do here, as what happened
when he shot George Featherly.
Carlsons juvenile probation officer testified
that, throughout Carlsons entire juvenile probation, he
continued to deny his involvement in this episode. She
stated that, at Carlsons juvenile disposition hearing,
the judge wanted to institutionalize him right there
and then [based on] his lack of remorse. When, in
1997, the probation officer wrote her summary upon
Carlsons discharge from juvenile probation, she
declared that [Carlson remains] a dangerous young man
who never took responsibility for any of his actions.
In addition, the State presented evidence
that Carlson had threatened the assistant district
attorney who prosecuted him for murder. The State
played a videotape of an incident that occurred as
Carlson was being led from the courtroom following the
jurys verdict at his second murder trial. Carlson
stared into the prosecutors face and declared, Ill see
you again.
Judge Hopwood concluded, based both on
Carlsons juvenile conduct and his conduct in the
present case, that Carlsons juvenile probation officer
was correct when she stated that Carlson will stand
there in front of you and lie, that he [is] very
manipulative, that he never takes any responsibility,
and that he is a dangerous young man. Judge Hopwood
further concluded that Carlson does not understand and
does not care a whit about the effect his behavior has
on other people:
The Court: Its apparent in his conduct
[and in his] testimony during the [murder]
trial. Its apparent from his [acts of]
evidence tampering and other evasive
behavior. Its apparent in what he did to the
neighbors whose house he ransacked. Its
apparent in his comments to the prosecutor
after the [second murder] trial.
Judge Hopwood also concluded that Carlson was
especially dangerous because there did not seem to be a
motive for his antisocial behavior, either in the
present case or in the prior incident of juvenile
delinquency.
The Court: [T]here was no motive for
this behavior. ... [And] I think its
important to note ... that ... this defendant
... doesnt need one. Thats the problem. He
can wreak havoc with other peoples lives for
no reason, and thats whats been happening.
Judge Hopwood concluded that Carlsons prospects for
rehabilitation were poor, and that Carlson needed to be
isolated to protect the public:
The Court: Hes got deep-seated
psychological issues that go far beyond just
acting out by somebody whos a little confused
because of immaturity. ... [The need for]
isolation is a factor here. I dont know if
Ive ever [before] had that as a sentencing
objective for somebody who is not even twenty
[years old], but it is [an objective] here.
He is dangerous.
In sentencing Carlson, Judge Hopwood expressly
recognized that the ultimate question was to decide
what composite sentence Carlson should receive for his
entire course of conduct not just the murder, but also
the several counts of evidence tampering and the
weapons offenses. As the judge stated, When we have
multiple counts, a sentencing court is obligated to not
focus on the individual sentences for those counts, but
to look at the overall [sentence] and weigh the total
against the defendants overall conduct.
Judge Hopwood concluded that Carlsons composite
sentence had to emphasize community condemnation of Carlsons
entire course of conduct in the present case:
The Court: Its [his entire] behavior.
Its the murder, but its also ... what he did
to attempt to evade responsibility and
detection the lies and the wasted police
work ... , and what he told the victims
family, and so on. ... Were condemning
that.
As already explained, Judge Hopwood did not consider
the murder itself to be atypically serious. Rather, he found the
other aspects of Carlsons behavior and history to be atypically
serious: Carlsons behavior as a juvenile (the burglary, the
theft and wanton destruction of property, and Carlsons later
threatening behavior toward the family); Carlsons repeated acts
of evidence tampering and, later, perjury in the present case;
Carlsons threat to the prosecutor; Carlsons apparent lack of
motive for his antisocial behavior; and Carlsons persistent
refusal to accept responsibility for any of his actions.
When a defendant [challenges] a composite sentence for
two or more criminal convictions, this Court assesses whether the
defendants combined sentence is clearly mistaken, given the whole
of the defendants conduct and history.48 Given the record in
Carlsons case, and given Judge Hopwoods findings, we can not say
that a composite sentence of 47 years to serve is clearly
mistaken.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1AS 11.41.110(a)(2).
2AS 11.56.610(a) and AS 11.61.200(a)(1), respectively.
31978 Senate Journal, Supp. No. 47 (June 12), page 10.
4Smith v. State, 28 P.3d 323, 325-26 (Alaska App. 2001).
5Neitzel, 655 P.2d at 332-33.
61978 Senate Journal, Supp. No. 47 (June 12), page 10.
7Id.
8Neitzel, 655 P.2d at 336.
9In 1999, the legislature increased the minimum penalty for
second-degree murder from 5 years to 10 years: see SLA
1999, ch. 65, 1.
10Page, 657 P.2d at 854 n. 2.
11Id. at 854-55.
12See, e.g., Soundara v. State, 107 P.3d 290, 301 (Alaska
App. 2005); Phillips v. State, 70 P.3d 1128, 1143 (Alaska
App. 2003); Allen v. State, 51 P.3d 949, 960-61 (Alaska App.
2002).
13Page, 657 P.2d at 855.
14Allen v. State, 51 P.3d 949, 960 (Alaska App. 2002); Brown
v. State, 973 P.2d 1158, 1162 (Alaska App.1999); Williams v.
State, 809 P.2d 931, 933-34 (Alaska App. 1991).
15Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000);
Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004);
Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005).
16AS 12.55.125(b).
17Page, 657 P.2d at 855.
18Apprendi, 530 U.S. at 468-69, 120 S.Ct. at 2351.
19Id., 530 U.S. at 492, 120 S.Ct. at 2363-64.
20Id., 530 U.S. at 476-77, 120 S.Ct. at 2355-56.
21Id., 530 U.S. at 478, 120 S.Ct. at 2356.
22Id., 530 U.S. at 478-79, 120 S.Ct. at 2356.
23Id., 530 U.S. at 482, 120 S.Ct. at 2359.
24Id., 530 U.S. 482-83, 120 S.Ct. at 2359.
25Id., 530 U.S. at 494, 120 S.Ct. at 2365.
26Id., 530 U.S. at 494-97, 120 S.Ct. at 2365-67.
27542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
28Blakely, 542 U.S. at 299, 124 S.Ct. at 2534-35.
29Id., 542 U.S. at 299, 124 S.Ct. at 2535.
30Id.
31Id., 542 U.S. at 300, 124 S.Ct. at 2535.
32Id., 542 U.S. at 303-05, 124 S.Ct. at 2537-38.
33Id., 542 U.S. at 305, 124 S.Ct. at 2538.
34543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
35Blakely, 542 U.S. at 309, 124 S.Ct. at 2540.
36AS 12.55.125(b).
37AS 12.55.005 reads:
Declaration of purpose. The purpose of this
chapter is to provide the means for determining the
appropriate sentence to be imposed upon conviction of
an offense. The legislature finds that the elimination
of unjustified disparity in sentences and the
attainment of reasonable uniformity in sentences can
best be achieved through a sentencing framework fixed
by statute as provided in this chapter. In imposing
sentence, the court shall consider
(1) the seriousness of the defendant's present
offense in relation to other offenses;
(2) the prior criminal history of the defendant
and the likelihood of rehabilitation;
(3) the need to confine the defendant to prevent
further harm to the public;
(4) the circumstances of the offense and the
extent to which the offense harmed the victim or
endangered the public safety or order;
(5) the effect of the sentence to be imposed in
deterring the defendant or other members of society
from future criminal conduct;
(6) the effect of the sentence to be imposed as a
community condemnation of the criminal act and as a
reaffirmation of societal norms; and
(7) the restoration of the victim and the
community.
38State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000),
quoting this Courts decision in Erickson v. State, 950 P.2d
580, 586 (Alaska App. 1997).
39AS 11.41.110(b) (second-degree murder is an unclassified
felony); AS 12.55.125(b) (the sentencing provisions
governing unclassified felonies) (in its pre-1999 form).
40AS 11.56.610(b) (evidence tampering is a class C felony);
AS 11.61.200(i) (third-degree weapons misconduct is a class
C felony); AS 12.55.125(e) (the sentencing provision
governing class C felonies) (in its pre-2005 form).
41See former AS 12.55.125(d)(1) and 125(e)(1) (in their pre-
2005 form).
42See Allen v. State, 56 P.3d 683, 684-85 (Alaska App.
2002).
43See State v. Gibbs, 105 P.3d 145, 148 (Alaska App. 2005).
Gibbs involved the sentencing of a first felony offender for
a class B felony. We held that any Blakely error committed
by the sentencing judge when finding aggravating factors was
moot because the defendant received less time to serve than
the 4-year presumptive term applicable to second felony
offenders, and thus the defendants sentence did not require
proof of any aggravating factors.
44See Austin v. State, 627 P.2d 657, 657-58 (Alaska App.
1981).
45746 P.2d 1300, 1301-02 (Alaska App. 1987).
46See Phillips v. State, 70 P.3d 1128, 1143 (Alaska App.
2003); Brown v. State, 4 P.3d 961, 964 (Alaska App. 2000);
Sam v. State, 842 P.2d 596, 603 (Alaska App. 1992).
47See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(an appellate court is to uphold a sentencing decision
unless the sentence is clearly mistaken).
48Custer v. State, 88 P.3d 545, 549 (Alaska App. 2004)
(footnotes omitted), citing Brown v. State, 12 P.3d 201, 210
(Alaska App. 2000); Jones v. State, 765 P.2d 107, 109 (Alaska
App. 1988); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App.
1987).
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