Opinion
A-13563 7088
01-24-2024
RAYMOND FRANKSON JR., Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage (opening brief), and Mike A. Stepovich, Stepovich Law Office, Fairbanks (reply brief, supplemental brief and oral argument), for the Appellant. Hazel C. Blum (initial brief) and Seneca Theno Freitag (supplemental brief and oral argument), Assistant Attorneys General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Second Judicial District, Kotzebue, Romano D. DiBenedetto, Judge. Trial Court No. 2KB-16-00008 CR
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage (opening brief), and Mike A. Stepovich, Stepovich Law Office, Fairbanks (reply brief, supplemental brief and oral argument), for the Appellant.
Hazel C. Blum (initial brief) and Seneca Theno Freitag (supplemental brief and oral argument), Assistant Attorneys General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD Judge.
Raymond Frankson Jr. was convicted, following a jury trial, of second-degree sexual abuse of a minor for sexually penetrating V.W., a fourteen-year-old girl.Prior to trial, Frankson pleaded guilty (without a plea agreement) to furnishing alcohol to a minor in a local option area and third-degree controlled substances misconduct for delivering marijuana to a minor. At sentencing, the superior court imposed a composite sentence of 29 years with 10 years suspended (19 years to serve) and 15 years' probation. Frankson appeals his second-degree sexual abuse of a minor conviction and his composite sentence, raising six claims of error.
AS 11.41.436(a)(1). The jury also found Frankson guilty of sexual assault in the second degree (former AS 11.41.420(a)(3) (2015)), but this count merged with the sexual abuse of a minor conviction at sentencing.
Former AS 04.16.051(d)(3) (2015).
AS 11.71.030(a)(2).
First, Frankson argues that the superior court erred in rejecting a proposed plea agreement on the morning of trial that would have allowed Frankson to plead guilty to third-degree sexual abuse of a minor. A limited remand to the superior court has clarified that the court rejected the plea agreement because it considered the probationary term too lenient. We conclude that the court acted within its discretion in rejecting the agreement.
Second, Frankson argues that because the superior court had no authority to reject the charge bargain component of the plea agreement under Alaska law, the court should have followed the procedures under Alaska Criminal Rule 11(e), and allowed Frankson the opportunity to plead to the reduced charge of third-degree sexual abuse of minor with open sentencing. For the reasons explained here, we conclude that by failing to communicate any desire to plead guilty to the charge bargain without the sentencing component, Frankson forfeited his right to plead to the charge bargain under Alaska Criminal Rule 11.
Third, Frankson argues that the superior court erred when it denied his motion to suppress evidence based on various misstatements and omissions in the search warrant application. For the reasons explained here, we reject this claim of error.
Fourth, Frankson argues that the superior court erred when it found a statutory aggravating factor that can only be found by a jury, and the State concedes that this was error. We find the State's concession well-founded, and we remand this case for resentencing.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess whether a concession of error "is supported by the record on appeal and has legal foundation").
Fifth, Frankson argues that the superior court failed to consider Frankson's potential for rehabilitation at sentencing. The State acknowledges that the record does not reflect that the court specifically considered this sentencing factor and that the court must do so on remand. We agree.
Id.
Lastly, Frankson argues that the written judgment in his case mistakenly states that Count V was dismissed under Alaska Criminal Rule 43(c) when the jury actually acquitted Frankson on that count. The State agrees that the written judgment should be corrected.
Accordingly, although we affirm Frankson's conviction for second-degree sexual abuse of a minor, we vacate his sentence and remand this case to the superior court for resentencing and correction of the written judgment.
Background facts and prior proceedings
In 2015, V.W. was fourteen years old and in the ninth grade. She lived with her grandmother in Point Hope. Through spending time with her aunt, V.W. met thirty-nine-year-old Raymond Frankson Jr., a friend of her aunt's.
On December 30, 2015, V.W. called Frankson to ask whether he had any alcohol. Frankson picked her up and brought her to his place, where the two drank alcohol and smoked marijuana. At trial, V.W. also claimed that she and Frankson "did a line of coke," which she identified because it was a "white, powdery substance." V.W. became very intoxicated and passed out. At trial, she testified that she woke up to Frankson having sexual intercourse with her; she was naked from the waist down. V.W. pushed Frankson off and left.
The police were contacted the next day, and North Slope Borough Police Officer Brandon Clemmons interviewed V.W. and her grandmother. At one point, V.W. said that Raymond Stone had raped her, but her grandmother told the officer that V.W. had previously said that it was Raymond Frankson. In subsequent interviews with V.W., she provided a description of a man that matched Frankson, not Stone, and identified the location of a residence that was near where Frankson lived. Officer Clemmons took V.W. to see Frankson's home and she confirmed that she had been there the previous night.
Officer Clemmons obtained search warrants to search Frankson's house and person. Frankson later waived his Miranda rights, and spoke to Clemmons. Frankson admitted having sexual intercourse with V.W., but he claimed it was consensual. He also claimed he did not know V.W.'s age. Frankson gave Officer Clemmons V.W.'s underwear that she had left behind.
A grand jury indicted Frankson on second-degree sexual assault; second-degree sexual abuse of a minor; furnishing alcohol to a minor; and two counts of third- degree misconduct involving controlled substances for delivering controlled substances to a minor (for allegedly furnishing marijuana and cocaine to V.W.).
Frankson moved to suppress evidence obtained by both warrants, arguing that Officer Clemmons's affidavit contained material misstatements and omissions that had been made with a "deliberate attempt to mislead the magistrate" because Officer Clemmons did not mention the initial confusion over whether the man was Raymond Stone or Raymond Frankson. The superior court denied the motion to suppress, finding that the officer did not act intentionally or with reckless disregard for the truth.
In the week before his trial, Frankson pleaded guilty (without a plea agreement) to two of his felony charges: furnishing alcohol to a minor under former AS 04.16.051(d)(3) and third-degree controlled substances misconduct under AS 11.71.030(a)(2) (delivering marijuana to a minor). The superior court accepted these pleas and deferred sentencing until trial on the remaining counts had occurred.
On the morning of trial, the parties announced that they had reached a plea agreement. Under the plea agreement, Frankson would plead guilty to a reduced charge of third-degree sexual abuse of a minor and the State would dismiss the remaining charges. Frankson would also stipulate that the "most serious" statutory aggravating factor would apply to all three of his convictions (the third-degree sexual abuse of a minor conviction as well as the furnishing alcohol conviction and third-degree controlled substances misconduct conviction to which Frankson had previously pleaded guilty). Sentencing would be open with two exceptions: Frankson would be required to serve a minimum of at least 8 years and probation would be capped at 5 years (out of a maximum of 15 years that could be imposed). Because of the stipulated aggravator, the superior court would have the authority to impose the maximum sentence for each of the three convictions.
AS 11.41.438(a).
See AS 12.55.155(c)(10).
Former AS 12.55.090(c)(1) (2016).
As we explain later, the parties mistakenly believed that Frankson faced a maximum sentence of 5 years on the delivering marijuana conviction under AS 11.71.030(a)(2), but Frankson actually faced a maximum sentence of 10 years on that conviction. See AS 12.55.125(d).
V.W.'s mother and father, who were present in the courtroom, expressed unhappiness that they had received no prior notice of this plea offer, and were only hearing about the proposed plea agreement minutes before trial was to begin. (When the parties presented the plea agreement, the jurors had been selected but not yet sworn.) V.W.'s father stated that he thought the plea agreement was too lenient, and both parents suggested that they were opposed to the plea.
The superior court indicated that it was rejecting the plea agreement. Someone in the courtroom then interrupted to point out that the victim's position had not been heard.
Initially, V.W. stated that she was in favor of the plea. But after further discussion off the record, V.W. indicated that she was also opposed to the plea and wanted to move forward with the trial.
The superior court reaffirmed that it was rejecting the plea agreement. The court then asked the parties if they were "ready to go" and announced that the jury would be brought in and sworn. No further discussion of the plea agreement occurred, and the court was not asked to take any further action.
At trial, Frankson conceded that he had sex with V.W. but he argued that the sex had been consensual and that he was reasonably mistaken about V.W.'s age. The jury rejected these defenses and found Frankson guilty of second-degree sexual assault and second-degree sexual abuse of a minor.
At the close of the State's evidence, the superior court granted a judgment of acquittal on the delivering cocaine charge because there was no evidence that the white powder that V.W. testified that she saw and ingested was cocaine.
At sentencing, the parties agreed that the second-degree sexual assault and sexual abuse of a minor counts merged into a single conviction for second-degree sexual abuse of a minor. The prosecutor argued that the "vulnerable victim" statutory aggravating factor applied to the sexual abuse of a minor conviction based on the jury's determination that V.W. was "incapacitated" for purposes of finding Frankson guilty of the second-degree sexual assault offense. The court merged the two counts and also found the aggravating factor. The court imposed 25 years with 10 years suspended (15 years to serve) on the merged sexual abuse of a minor count. The court then imposed a consecutive sentence of 1 year to serve for the furnishing alcohol conviction and a consecutive sentence of 3 years to serve for the delivery of marijuana conviction, resulting in a composite sentence of 29 years with 10 years suspended (19 years to serve). The court also imposed 15 years' probation, which was the maximum probationary period available.
See AS 12.55.155(c)(5); former AS 11.41.420(a)(3) (2015).
See former AS 12.55.090(c)(1) (2016).
This appeal followed.
Frankson's argument that the superior court erred when it rejected the parties' plea agreement on the morning of trial
Frankson makes three different arguments with regard to the rejected plea agreement. Frankson argues first that it was error for the superior court to reject the plea agreement without providing an explanation for why it was rejecting the plea agreement. Frankson argues next that, because the superior court did not explain why it was rejecting the plea agreement, it is possible the superior court acted out of the scope of its authority and rejected the plea agreement for improper reasons - such as a disagreement with the prosecutor's decision to offer Frankson a reduced charge. Lastly, Frankson argues that, even if the superior court did not err in rejecting the sentencing component of the plea agreement, the court nevertheless erred in not following the procedure under Alaska Criminal Rule 11(e) and allowing Frankson to plead (with open sentencing) to the charge bargain component of the plea agreement.
We agree that it was error for the superior court to reject the plea agreement without putting its reasons for doing so on the record. In Frankson v. State (a separate case involving a defendant with the same last name), we noted that a majority of jurisdictions required trial courts to explain their reasons for rejecting a plea agreement, and we adopted that requirement under Alaska law.
See Frankson v. State, 518 P.3d 743, 757 (Alaska App. 2022) ("[B]oth parties argue that when a trial court rejects a sentencing agreement, it should put its reasons for doing so on the record. The majority of jurisdictions have adopted such a requirement, and we likewise adopt it here.").
At oral argument, the parties agreed that, if the superior court's reasons for rejecting the plea agreement could not otherwise be discerned from the record, we should temporarily remand the case so that the superior court could state its reasons for the record. Because it was unclear why the superior court rejected the agreement, we remanded the case for clarification. On remand, the superior court issued an order clarifying that it rejected the sentencing agreement because the probationary term (5 years out of a maximum of 15 years) was too lenient.
In supplemental briefing following the remand, Frankson does not argue that the court's reason for rejecting the sentencing agreement was invalid. Instead, Frankson appears to concede that the superior court acted within its discretion when it rejected the 5-year probationary term as too lenient. But Frankson argues that the court still erred in failing to follow the procedures of Criminal Rule 11(e)(3).
Criminal Rule 11(e)(3) states, in relevant part:
If the court rejects the [sentencing] agreement, the court shall inform the parties of this fact and advise the prosecuting attorney and the defendant personally in open court that the court is not bound by the agreement. If the court rejects the agreement as too lenient, the court shall then afford the defendant the opportunity to withdraw the plea.
Based on this language, and our discussion of this language in Frankson, Frankson argues that the superior court was required to affirmatively advise Frankson that he had one of two choices: he could either withdraw his guilty plea to the reduced charge and proceed to trial or he could maintain his guilty plea to the reduced charge and proceed to open sentencing with the superior court. We do not agree that the superior court had this obligation.
Id. at 754 ("In other words, a trial court's rejection of a sentencing agreement as too lenient does not mean that the other parts of the plea agreementi.e., the charge agreement and any agreement about Blakely aggravators - automatically go away. Instead, the defendant must be given the choice to either withdraw their plea or to move forward with open sentencing under the remaining terms of the plea agreement.").
As an initial matter, we note that the language of Criminal Rule 11(e)(3) presupposes that the defendant has actually entered a guilty plea prior to the trial court rejecting the sentencing agreement. But, here, the record is clear that Frankson never entered a plea to the reduced charge. Because Frankson never entered a guilty plea, there was no need for the court to advise him that he had the right to withdraw that plea. If Frankson wanted to proceed with the charge bargain and actually plead guilty to the reduced charge with open sentencing, he needed to make that clear to the superior court at that time. Here, the superior court asked the parties if there was any reason not to proceed with the trial. Frankson did not object to the court proceeding with the trial and did not request to plead to the charge bargain with open sentencing. Given these circumstances, we will not fault the superior court for moving forward with the previously scheduled trial.
Further complicating matters is the fact that the parties were actually mistaken about certain key parts of the plea agreement. Indeed, the presentation of the plea agreement to the superior court was very haphazard, with the parties still trying to come to an agreement on the terms even as they were presenting the agreement to the court. Because of the rushed nature of the plea negotiations, the parties mistakenly believed that Frankson faced a maximum sentence of only 15 years under the plea agreement when, in reality, he faced a maximum sentence of 20 years. Presumably this error would have been corrected if the plea agreement had moved forward. But, without a clear record, it is purely speculative whether Frankson would have accepted the charge bargain and proceeded with open sentencing had he known the maximum sentence he actually faced.
The confusion appears to have arisen because of the marijuana charge. Frankson was charged with third-degree misconduct involving a controlled substance (delivering marijuana to a minor) under AS 11.71.030(a)(2). At the time of the conduct in 2015, AS 11.71.030(a)(2) was labelled as third-degree misconduct involving a controlled substance, and classified as a class B felony, which carried a maximum penalty of 10 years. See SLA 1982, ch. 45 § 2; AS 12.55.125(d). However, in 2016, the legislature reclassified the crime of third-degree misconduct involving a controlled substance as a class C felony, which carried a maximum penalty of 5 years. See SLA 2016, ch. 36, §§ 45-46; AS 12.55.125(c). At the same time, the legislature retitled AS 11.71.030 as second-degree misconduct involving a controlled substance, amending much of the statute but incorporating the same language of AS 11.71.030(a)(2) and maintaining it as a class B felony. See SLA 2016, ch. 36, §§ 42-43. Thus, the conduct prohibited under AS 11.71.030(a)(2) remained a class B felony even under the 2016 legislation. However, the parties appear to have mistakenly assumed that AS 11.71.030(a)(2) was reclassified as a class C felony, for which Frankson would have faced only a 5-year maximum sentence.
In sum, we conclude that the superior court acted within its discretion when it rejected the proposed sentencing agreement as too lenient because the probationary period was only 5 years (out of a possible 15 years). We further conclude that Frankson forfeited any right he may have had to plead to the charge bargain by failing to request that he be allowed to plead guilty to the reduced charge and face open sentencing.
Frankson's argument that the superior court erred when it denied his motion to suppress
In the superior court proceedings, Frankson filed a pretrial motion to suppress arguing that the application for the search warrants included intentional misstatements of facts and material omissions. In particular, Frankson challenged the officer's assertion that "[V.W.] stated she was raped the prior night by an adult male identified as Raymond Frankson Jr." He claimed that this statement was false because V.W. told the officer that Raymond Stone was her assailant, not Raymond Frankson. Frankson also challenged the officer's failure to mention that he drove by Raymond Frankson's house multiple times before V.W. identified the house as her assailant's house.
The superior court agreed that the officer had made some misstatements, but the court found that the officer had not done so "intentionally or with reckless disregard of the truth." The court therefore denied Frankson's motion to suppress.
On appeal, Frankson argues that the superior court erred in finding the officers' misstatements merely negligent. In response, the State argues that the superior court's finding of negligence is not clearly erroneous.
In State v. Malkin, the Alaska Supreme Court held that a search warrant based on reckless or intentional misstatements may be declared invalid. Thus, once a defendant has identified false statements in a search warrant application, the burden shifts to the State to show that the statements were not made intentionally or with reckless disregard for the truth. If the trial court finds that the officer was merely negligent, the false statement remains in the warrant application and can still be considered as part of the probable cause determination. If the trial court finds that the officer acted in reckless disregard of the truth, the court is required to excise the misstatements and/or include the omitted information and determine whether probable cause still exists. If the trial court finds that the officer acted intentionally in a "deliberate attempt to mislead a judicial officer," the court is required to invalidate the search warrant, regardless of whether the misstatements were material to the probable cause finding.
State v. Malkin, 722 P.2d 943, 946 (Alaska 1986).
Id.
Id. at 947.
Id. at 946; Lewis v. State, 9 P.3d 1028, 1033-35 (Alaska App. 2000) (explaining that the Malkin analysis also applies to omissions in search warrant affidavits).
Malkin, 722 P.2d at 946 n.6.
Frankson argues that the record in the current case shows that the officer acted intentionally in a deliberate attempt to mislead a judicial officer. We disagree. We note that, in the superior court proceedings, the parties apparently agreed to have this issue resolved based on the officer's supplemental affidavit rather than through an evidentiary hearing. In his supplemental affidavit, the officer provided the following explanation for why he did not include any information about Raymond Stone in the search warrant application:
For the search warrant application, I did not include the discrepancies of Stone Jr. and Frankson Jr. because I believed the totality of the circumstances and information obtain[ed] lead [sic] me to a positive identification of the individual and house location. I believed the other information regarding Stone Jr. was irrelevant and unimportant to the case at that time.
The officer further explained that he believed the information about Stone was "unimportant" because (1) V.W.'s grandmother reported that V.W. had initially identified Frankson, not Stone; (2) V.W.'s physical description of the assailant was consistent with Frankson's physical appearance and age and inconsistent with Stone's physical appearance and age; (3) V.W.'s description of the location of the residence was consistent with the location of Frankson's residence and inconsistent with the location of Stone's residence; and (4) V.W. ultimately identified Frankson's residence as her assailant's residence.
The officer's supplemental affidavit does not suggest that he acted intentionally with an attempt to mislead the magistrate. Rather, it suggests that the officer acted recklessly (instead of negligently, as the superior court found). A remand for an evidentiary hearing is arguably needed to determine whether the officer's actions were reckless or negligent. However, we conclude that there is no need for a remand because, even assuming that the superior court erred in finding that the officer acted only negligently, we uphold the court's ruling on the alternative ground that probable cause to search Frankson's residence and person would still exist even if the full information about V.W.'s confusion over Raymond Frankson and Raymond Stone was considered. In other words, although the officer was mistaken in assuming that this information was "irrelevant" and did not need to be included in the search warrant application, the officer was not mistaken that the totality of circumstances clearly supported the conclusion that Raymond Frankson was V.W.'s assailant and that probable cause existed to search his residence and person.
See State v. Anderson, 73 P.3d 1242, 1246, 1248 (Alaska App. 2003) (holding that the addition of certain omissions found to have been recklessly excluded from the officer's affidavit did not preclude a finding of probable cause to support a Glass warrant application); cf. Lewis, 9 P.3d at 1033-35 (concluding that, despite the officer's reckless omission of material information related to the charged offense, there was probable cause to support the search warrant based on an alternative offense).
Frankson s argument that the superior court erred in finding the Blakely aggravating factor of "vulnerable victim" when the jury was not asked to find that aggravating factor
At sentencing, the prosecutor argued that the superior court should find the Blakely aggravator that the offense was committed against a "vulnerable victim" based on the fact that the jury convicted Frankson of second-degree sexual assault. The prosecutor argued that to convict Frankson of second-degree sexual assault, the jury had to have found that V.W. was "incapacitated," and the prosecutor argued that the superior court should treat this finding of "incapacitation" as equivalent to a finding that V.W. qualifies as a "vulnerable victim" for purposes of AS 12.55.155(c)(5).
See AS 11.41.470(2) (defining "incapacitated" for purposes of the sexual assault statutes as "temporarily incapable of appraising the nature of one's own conduct or physically unable to express unwillingness to act").
See AS 12.55.155(c)(5) (establishing that it is an aggravating factor when "the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill health, homelessness, consumption of alcohol or drugs, or extreme youth or was for any other reason substantially incapable of exercising normal physical or mental powers of resistance").
On appeal, however, the State concedes that although the definitions of "vulnerable victim" and "incapacitation" are similar, they are not identical. The State therefore agrees with Frankson that it was error for the superior court to rely on a Blakely aggravator when the aggravator was not submitted to the jury, and that resentencing under a non-aggravated presumptive sentencing range is therefore needed. We conclude that this concession is well-founded.
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972); see also Alexiadis v. State, 355 P.3d 570, 572 (Alaska App. 2015) (holding that "[a] sentencing court has no authority to find [Blakely] factors in the absence of a jury verdict"); AS 12.55.155(f)(2).
Frankson's argument that the superior court erred in failing to consider his prospects for rehabilitation when sentencing him
At sentencing, the superior court imposed a sentence of 25 years with 10 years suspended (15 years to serve) on the merged second-degree sexual abuse of a minor conviction. The court also imposed a consecutive sentence of 1 year for the furnishing alcohol to a minor conviction and a consecutive sentence of 3 years for the delivering marijuana to a minor conviction, for a composite sentence of 29 years with 10 years suspended (19 years to serve). In imposing this sentence, the superior court discussed the need for deterrence, reaffirmation of societal values, the harm to the community, and restoration of the victim. However, the superior court did not mention the Chaney sentencing factor of rehabilitation of the offender and the superior court did not make any references to Frankson's prospects for rehabilitation.
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005(2).
On appeal, the State concedes that "there is no indication that [the superior court] specifically considered Frankson's rehabilitative potential when imposing the sentence." The State further agrees that because this case is being remanded for resentencing for other reasons, the superior court should affirmatively consider and discuss Frankson's rehabilitative potential during the resentencing on remand. We agree that this concession is well-founded.
See Husted v. State, 608 P.2d 298, 298 (Alaska 1980).
Marks, 496 P.2d at 67-68. The duty to consider rehabilitation during sentencing is well-established in Alaskan case law. See Husted, 608 P.2d at 298 (collecting cases).
Frankson's argument that the judgment should be corrected to make clear that the superior court granted a judgment of acquittal on the cocaine charge
As previously mentioned, Frankson was originally charged with two counts of third-degree misconduct involving a controlled substance for allegedly delivering marijuana and cocaine to V.W., a minor. Frankson pleaded guilty to the marijuana charge prior to trial. At trial, the only evidence that the encounter had involved cocaine was V.W.'s statement that she was given some "white powder." Frankson moved for a judgment of acquittal at the close of the State's evidence, which the superior court granted.
AS 11.71.030(a)(2).
On appeal, Frankson points out that his judgment erroneously states that the cocaine charge was "dismissed" pursuant to Alaska Criminal Rule 43(c), and he argues that this error should be corrected to make it clear that the court granted a judgment of acquittal on that charge. The State agrees. On remand, the superior court shall correct the error.
See Alaska R. Crim. P. 36; Marunich v. State, 151 P.3d 510, 514 (Alaska App. 2006) ("As a general rule, when the terms of a defendant's sentence as stated in the court's written judgement differ from the terms of the sentence announced orally by the sentencing judge at the defendant's sentencing hearing, the oral sentence controls."). We also note that Frankson's judgment appears to contain an additional error: it states that Frankson was found guilty of one count of second-degree misconduct involving a controlled substance under AS 11.71.030(a)(2), and that a second count of second-degree misconduct involving a controlled substance under AS 11.71.030(a)(2) was dismissed. But as we have explained, at the time of Frankson's offense, AS 11.71.030(a)(2) was categorized as third-degree misconduct involving a controlled substance. We instruct the superior court to correct this error on remand as well.
Conclusion
Frankson's conviction for second-degree sexual abuse of a minor is AFFIRMED. Frankson's composite sentence is VACATED, and this case is REMANDED to the superior court for resentencing.