Opinion
Court of Appeals No. A-11566 Court of Appeals No. A-11569 No. 6736
11-21-2018
JEFFERY INDELLICATI, Appellant, v. STATE OF ALASKA, Appellee. BENJAMIN CROSS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Rex Lamont Butler, Rex Lamont Butler and Associates, P.C., Anchorage, under contract with the Office of Public Advocacy, for Appellant Indellicati. Megan Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant Cross. Mary A. Gilson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3PA-10-1075 CR Trial Court No. 3PA-10-1073 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Rex Lamont Butler, Rex Lamont Butler and Associates, P.C., Anchorage, under contract with the Office of Public Advocacy, for Appellant Indellicati. Megan Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant Cross. Mary A. Gilson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Cabin owners near Skwentna complained to the Alaska State Troopers in Talkeetna about persistent gunfire in their area. Troopers investigated and learned that two men, later identified as Jeffery Indellicati and Benjamin Cross, had recently rented a cabin near Skwentna — and that these two men were probably the source of the disturbance. During the ensuing investigation, the troopers developed evidence linking Indellicati and Cross to a string of burglaries in the area.
The two men were ultimately convicted of multiple burglaries, thefts, and acts of criminal mischief. They now appeal. Because the issues raised in the two men's appeals are mostly identical, we have consolidated the two appeals for decision.
The first issue on appeal arises from the fact that, even though the troopers had probable cause to arrest the two men, the troopers neglected to apply for an arrest warrant — and, absent an arrest warrant, the troopers were not authorized to enter the men's rental cabin to effect their arrest. Nonetheless, two state troopers flew to a lodge in Skwentna, made their way to the cabin, ordered the men to come outside, and then arrested them. This warrantless arrest was illegal.
Based on the illegality of the arrest, Indellicati and Cross asked the superior court to suppress all the statements they made to the troopers, both before and after their arrest. In addition, Indellicati asked the superior court to suppress his identification by the troopers. The superior court denied these motions, and Indellicati and Cross challenge the superior court's rulings on appeal. For the reasons explained in this opinion, we conclude that the evidence was not tainted by the illegal arrest.
After Indellicati and Cross were arrested, the troopers conducted a warrantless search of the cabin that the men had been occupying. Indellicati and Cross moved to suppress the evidence gathered during this warrantless search. The superior court denied this motion, and Indellicati and Cross now challenge the superior court's ruling. We conclude that the search of the cabin fell within two exceptions to the warrant requirement: the doctrines of inevitable discovery and of discovery through an independent source.
In addition, Indellicati appeals his sentence. The court sentenced Indellicati to approximately 21½ years' imprisonment, more than twice the maximum sentence for his most serious crime. Because the record fails to disclose whether the judge considered the Neal-Mutschler rule, we remand Indellicati's case to the superior court for reconsideration of his sentence.
Neal v. State, 628 P.2d 19 (Alaska 1981); Mutschler v. State, 560 P.2d 377 (Alaska 1977). See Phelps v. State, 236 P.3d 381, 393 (Alaska App. 2010) (modifying the Neal-Mutschler rule).
Background facts and proceedings
On April 28, 2010, residents and cabin owners near Skwentna began telephoning Alaska State Trooper Terrence Shanigan at his station in Talkeetna. The callers complained about multiple bursts of gunfire in the surrounding area, which contained many recreational-use cabins. One report stated that the gunfire was so intense that the area sounded like a "war zone."
Troopers investigated and learned that two men, later identified as Benjamin Cross and Jeffery Indellicati, had rented a cabin in the area. Over the course of several days, the troopers developed probable cause to arrest the men for a series of burglaries. The troopers did not know the names of the men, but they had sufficient information to identify the men with particularity; thus, the troopers could have obtained arrest warrants for the men. But on April 30, 2010, without obtaining arrest warrants, Trooper Shanigan, accompanied by Sergeant Mark Agnew, flew to a nearby lodge with the intention of locating and arresting the two men.
See, e.g., State v. Dabney, 663 N.W.2d 366, 371-72 (Wis. App. 2003); Powe v. City of Chicago, 664 F.2d 639, 646 (7th Cir. 1981). In general, see Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (5th ed. 2012), § 5.1(h), Vol. 3, pp. 92-94.
After flying to the lodge, the troopers walked and canoed for approximately an hour to reach the isolated cabin where Indellicati and Cross were staying. When they arrived at the cabin, the troopers could hear two men speaking to one another inside. The troopers ordered the men to come out with their hands up, but the men refused, and a standoff ensued.
Over the course of this standoff, Indellicati and Cross spoke intermittently with the troopers. They asked the troopers for walkie-talkies or other communication devices so they could contact their families, and they also asked for marijuana. The men told the troopers that they were going to smoke cigarettes and drink some shots of whiskey before they surrendered. At one point, they threatened to burn the cabin down, but then they stated that they were only kidding. One of the men inquired whether smoking was allowed in jail.
Eventually, Indellicati and Cross emerged from the cabin. Sergeant Agnew assumed a covering position with his rifle while Trooper Shanigan handcuffed the men. One of the troopers then read the men a Miranda advisement, and both of them declined to answer questions.
The men eventually identified themselves as Jeffery Indellicati and Benjamin Cross. Sergeant Agnew contacted his superior in Talkeetna (via a weak cell phone connection) and requested a helicopter for prisoner transport. At some later point, the troopers learned that Indellicati and Cross were suspects in a criminal investigation in New Jersey, and that both men were the subjects of out-of-state arrest warrants. But the troopers did not formally arrest either man on the authority of an outstanding arrest warrant.
Even though both Indellicati and Cross had invoked their right to remain silent, they both continued to volunteer statements to the troopers. These volunteered statements were often jocular or laden with bravado, and some of the statements were at least tangentially incriminating or otherwise prejudicial to the men's cases.
A few hours after the troopers arrested Indellicati and Cross, the prisoner transport helicopter arrived, with Trooper Lucas Hegg on board. Sergeant Agnew guarded the men while Shanigan and Hess entered the rental cabin and searched it for about an hour, taking photographs inside.
Inside the cabin, the troopers found two black duffel bags containing assorted firearms and ammunition. These duffels (and their contents) were loaded into the helicopter, and then Troopers Shanigan and Hegg transported Indellicati and Cross by air to the Northwoods Lodge, to see if lodge owner Eric Johnson could identify either Indellicati or Cross as one of the people he had earlier seen fleeing a friend's cabin. Johnson identified both Indellicati and Cross as having been at the cabin. The two men were then transported by helicopter to Wasilla.
Seventeen days later, after obtaining a warrant to search the rental cabin again, the troopers returned to the cabin and continued their search, gathering additional evidence.
During trial, the attorneys representing Indellicati and Cross asked the superior court to suppress the men's statements at the cabin (the statements uttered both before and after the men emerged from the cabin). The defense attorneys argued that these statements were tainted by the troopers' demand that the men exit the cabin, and then by the ensuing unlawful arrest. The defense attorneys also asked the court to suppress all of the evidence found during the troopers' initial warrantless search of the cabin.
Following an evidentiary hearing, the trial judge denied both of these motions. With regard to Indellicati's and Cross's statements, the judge concluded that, under our decision in McBath v. State, the fact that there were out-of-state arrest warrants for both men served to dissipate the taint of their unlawful arrest (even though the troopers did not know about these out-of-state warrants at the time). With regard to the warrantless search of the cabin, the judge found that the troopers had probable cause to believe that the cabin contained firearms, and that the troopers' entry to seize these weapons was justified by exigent circumstances, since it would be dangerous to leave the firearms unattended in a remote cabin. Alternatively, the judge concluded that even if the troopers had not immediately searched the cabin, the troopers would inevitably have returned to the cabin with a search warrant — and then they would have discovered the firearms and the other evidence inside the cabin.
See McBath v. State, 108 P.3d 241 (Alaska App. 2005).
Following a jury trial, Indellicati and Cross were found guilty of fourteen counts of first-degree burglary, a class B felony. They were also found guilty of twenty-eight class C felonies: twenty counts of second-degree theft, one count of second-degree burglary, one count of first-degree vehicle theft, and six counts of third-degree criminal mischief. (The men were also convicted of one class A misdemeanor: a single count of fourth-degree criminal mischief.)
AS 11.46.300(a)(1) and (b), former AS 11.46.130(a)(1) (2010), AS 11.46.310, former AS 11.46.360(a)(2)(A) (2010), and former AS 11.46.482(a)(1) (2010), respectively.
Former AS 11.46.484(a)(1) (2010).
Indellicati and Cross now appeal their convictions, and Indellicati appeals his sentence.
The judge correctly found that the warrantless arrests were illegal
When we review a ruling on a motion to suppress evidence, we review the judge's findings of fact under the clearly erroneous standard. But as to the judge's legal conclusions based on those found facts, we conduct an independent review without deference to the judge's ruling.
State v. Miller, 207 P.3d 541, 543 (Alaska 2009).
State v. Gibson, 267 P.3d 645, 650 (Alaska 2012).
In Payton v. New York, the United States Supreme Court ruled that even when there is probable cause to believe that a person has committed a crime, the police cannot legally enter the person's home to arrest the person without an arrest warrant (unless the police are in hot pursuit). And federal case law has established that, in these situations, if the police make a show of force and command the person to exit their home, such an arrest is also illegal.
Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
See United States v. Reeves, 524 F.3d 1161, 1167-69 (10th Cir. 2008); Sharrar v. Felsing, 128 F.3d 810, 819-820 (3rd Cir. 1997); United States v. Morgan, 743 F.2d 1158, 1161-64 (6th Cir. 1984); United States v. Johnson, 626 F.2d 753, 755-57 (9th Cir. 1980).
In the present case, the superior court ruled that Indellicati's and Cross's warrantless arrest was illegal for this reason. The State argues on appeal that this ruling was error, contending that the seizure was not an arrest but a legitimate investigatory stop. But under these facts, we uphold the judge's ruling that the troopers unlawfully forced the men out of the cabin and arrested them without a warrant.
Why we nevertheless uphold the superior court's denial of the motion to suppress the men's volunteered statements
Statements made after an illegal arrest — or, on the present facts, the statements that Indellicati and Cross made during the standoff that ensued after the troopers unlawfully ordered the men to leave the cabin — are subject to suppression unless the statements are "sufficiently an act of free will to purge the primary taint" of the unlawful arrest. But when an illegally arrested defendant volunteers statements that are not induced by police interrogation or manipulation, courts have held that those volunteered comments are sufficiently free of the taint of the illegal arrest, and that suppression is not required.
Brown v. Illinois, 422 U.S. 590, 602; 95 S.Ct. 2254, 2261; 45 L.Ed.2d 416 (1975).
See United States v. Houle, 620 F.2d 164, 165-66 (8th Cir. 1980) (holding that suppression was not required when an officer overheard a defendant brag to a cell mate about the crime); State v. Ostroski, 518 A.2d 915, 922-23 (Conn. 1986) (holding that suppression of a defendant's unexpected voluntary admission was not required); State v. Olds, 569 S.W.2d 745, 747-48 (Mo. 1978) (holding that the defendant's interjected comment, made while the police officers were discussing a collateral issue between themselves, was not tainted by the prior illegality).
Even though the troopers ordered Indellicati and Cross to exit the cabin, the men refused, and a standoff ensued. During this standoff, Indellicati and Cross engaged in spontaneous banter with the troopers. The men were not under the physical control of the troopers; and, although the troopers occasionally asked the men questions during this standoff, the statements at issue here were not made in response to the troopers' questions.
After the two men finally emerged from the cabin and were given Miranda advisements, they continued to volunteer jocular or bravado-laden statements. Nothing that the troopers said or did — either during the standoff or after the arrest — prompted Indellicati and Cross to engage in this intermittent commentary.
Because the men's statements during the standoff and following their arrest were spontaneous and volunteered, we hold that those statements were sufficiently acts of free will that they were not tainted by the illegal arrest.
We make one exception to this conclusion — an exception for a statement that the men made after the troopers had searched the cabin. As we have explained, during this search, the troopers found two black duffel bags containing firearms and ammunition. After the troopers brought these duffels out of the cabin, they asked Indellicati and Cross whether the duffels belonged to them — whereupon Indellicati and Cross acknowledged ownership of the duffels. Both because Indellicati and Cross had been illegally arrested, and because Indellicati and Cross had already invoked their right to silence, this interrogation was unlawful.
But as we explain in the next section of this opinion, the evidence pertaining to these duffels — in particular, the fact that the duffels were discovered inside the cabin after Indellicati's and Cross's standoff with the troopers, and the fact that these duffels contained numerous firearms and ammunition — was all independently admissible against Indellicati and Cross. We therefore conclude that the Miranda violation was harmless beyond a reasonable doubt.
The troopers' initial warrantless search of the cabin fell within two exceptions to the warrant requirement
A warrantless entry into a home is per se unreasonable unless it falls under one of the limited exceptions to the warrant requirement. One such exception is the presence of exigent circumstances — circumstances that create "a compelling need for official action" when there is "no time to secure a warrant." To determine whether a "compelling need" exists, courts look to the totality of the circumstances, balancing the exigency against the intrusiveness of the warrantless search.
Ingram v. State, 703 P.2d 415, 422 (Alaska App. 1985) (quoting Michigan v. Tyler, 436 U.S. 499, 509; 98 S.Ct. 1942, 1949; 56 L.Ed.2d 486, 498 (1978)), aff'd 719 P.2d 265 (Alaska 1986).
Ingram, 703 P.2d at 422.
Indellicati and Cross challenge the trial court's ruling that the suspected presence of firearms inside the cabin created a compelling need for official action with no time to secure a warrant. We agree that the record does not support this ruling.
The most direct explanation of our conclusion is that the troopers created the exigency themselves: they could have obtained a search warrant for the cabin before they flew to the scene. In addition, once the troopers were at the scene, they could readily have obtained a search warrant by using a telephone at the nearby lodge, which was only a few minutes away by helicopter.
See Kentucky v. King, 563 U.S. 452, 462; 131 S.Ct. 1849, 1857-58; 179 L.Ed.2d 865 (2011) (the police are not entitled to circumvent the Fourth Amendment by creating their own exigency).
But the superior court also ruled, in the alternative, that the evidence found in the cabin was admissible under the doctrine of inevitable discovery. Under this doctrine, if an unlawful search or seizure has occurred, but if the government proves that, absent the illegality, the evidence in question would inevitably have been discovered pursuant to routine and predictable police investigative procedures, then the evidence is admissible despite the illegality. However, the State cannot avail itself of this doctrine if the police knowingly or intentionally violated the defendant's rights.
Smith v. State, 948 P.2d 473, 478-481 (Alaska 1997).
Id. at 481.
Here, the superior court found that, regardless of the troopers' initial entry into the cabin, the troopers would inevitably have secured a warrant to search the cabin, and that they had probable cause to support that warrant, independent of what they discovered in the cabin during their initial entry. The superior court also found that the troopers had not acted in bad faith. The superior court declared that, even though the troopers were wrong to believe that they were authorized to search the cabin incident to their arrest of Indellicati and Cross, the troopers did not "knowingly or intentionally violate the defendants' rights."
In his briefs to this Court, Indellicati does not challenge the superior court's inevitable discovery ruling. Therefore, as to him, we uphold the superior court's ruling that the evidence found in the cabin was admissible.
Cross does challenge the superior court's inevitable discovery ruling, but only one aspect of it: the superior court's finding that the troopers did not act in bad faith when they made their initial entry into the cabin. Cross argues that because the law requiring a warrant in these circumstances is so well-established, the troopers could not have been acting in good faith.
For these purposes, the term "bad faith" means that the police knowingly or intentionally violated the defendant's rights. Under this test, it is not enough to show that troopers deliberately acted in a manner that happened to violate Cross's rights. Rather, law enforcement officers act in bad faith only if they are aware at the time that their actions violate a suspect's rights.
See Smith v. State, 948 P.2d 473, 481 (Alaska 1997) (holding that the State cannot avail itself of the inevitable discovery doctrine in cases where the police "acted in bad faith to accelerate the discovery" of the evidence in question — where they "intentionally or knowingly violated a suspect's rights").
Here, the superior court found that the troopers acted mistakenly but in good faith when they entered the cabin the first time. This is a finding of historical fact, and we are bound by the superior court's finding unless we are convinced that it is clearly erroneous. Here, the superior court's finding is a reasonable inference from the record, and it is not clearly erroneous.
See Smith v. State (Smith II), 992 P.2d 605, 610 (Alaska App. 1999).
Therefore, with respect to Cross as well, we uphold the superior court's ruling that the evidence found in the cabin was admissible.
We further note that our supreme court has recognized a related exception to the exclusionary rule — the independent source doctrine. Under this doctrine, even if evidence is developed during an unlawful search or seizure, the evidence is admissible if the police also independently obtained it from a lawful source.
See Erickson v. State, 507 P.2d 508, 512, 516 (Alaska 1973); Cruse v. State, 584 P.2d 1141, 1143, 1146 (Alaska 1978).
The inevitable discovery doctrine and the independent source doctrine are related but discrete exceptions to the exclusionary rule. The inevitable discovery exception turns on what would have inevitably happened absent the improper search or seizure, while the independent source exception focuses on what actually happened after the illegal search or seizure:
The "inevitable discovery" doctrine applies to situations where the government concedes that the challenged evidence was obtained unlawfully, but argues that the evidence inevitably would have been lawfully discovered and seized if events had run their course. The "independent source" doctrine, on the other hand, applies to situations where, despite a preceding illegal search or seizure, the government ultimately obtained the challenged evidence in an ostensibly lawful manner (e.g., under the authority of a search warrant), and the question is whether the government's authority for seizing the evidence was indeed independent of the prior illegality.
Starkey v. State, 272 P.3d 347, 350 (Alaska App. 2012).
Here, the independent source doctrine is another way of analyzing the superior court's ruling. After having entered the cabin without a warrant, the troopers applied for a search warrant to enter the cabin a second time. Indellicati and Cross do not challenge the superior court's finding that the troopers were going to apply for this search warrant regardless of what they found during their initial search. Nor do they challenge the superior court's ruling that the search warrant application contained sufficient information, independent of the information gained during the initial warrantless search, to establish probable cause to believe that the cabin contained evidence of crimes.
These facts make Indellicati's and Cross's case similar to Cruse v. State. In Cruse, the troopers unlawfully opened the trunk of a vehicle and found a handgun. They then applied for a warrant to search the vehicle — but the officer who applied for the warrant withheld the information about already finding the gun in the trunk. Instead, the officer relied on other, independently obtained information to establish probable cause to search the vehicle. The supreme court held that, given these circumstances, the gun was admissible in evidence because it was seized under a search warrant that was "obtained through information wholly independent of the initial trunk search."
Cruse v. State, 584 P.2d 1141 (Alaska 1978).
Cruse, 584 P.2d at 1143.
Id. at 1145.
Cruse is potentially distinguishable because, in that case, the police officer left the handgun in the trunk after finding it; the police did not seize the gun until they executed the search warrant. Here, in contrast, the troopers seized the firearms and ammunition from the cabin, and they took these items with them when they transported Indellicati and Cross away by helicopter. Thus, this evidence was not physically present in the cabin when the officers returned with the search warrant.
Id. at 1143.
But in United States v. Herrold, the Third Circuit held that this distinction was of no consequence:
We recognize, of course, that this case presents a special question with regard to the gun because the police actually seized it during the unlawful entry and not during the warranted search. Nevertheless, we see no reason not to treat the gun as also being seized pursuant to the search warrant which specifically authorized the seizure of "firearms of any type." ... It would be ... senseless to require the formality of physically re-seizing the gun already seized during the initial entry. Thus ... the gun is as admissible under the independent source doctrine as the other, non-dangerous evidence, seen during the initial entry but not seized until the warrant-authorized search.We find this reasoning to be persuasive.
United States v. Herrold, 962 F.2d 1131, 1143 (3rd Cir. 1992). See also United States v. May, 214 F.3d 900, 906-07 (7th Cir. 2000) (stating that even though the police should not be allowed to benefit from unlawful conduct, neither should they be placed in a worse position by judicial exclusion of evidence that was later discovered or re-seized through independent, lawful means); and see State v. Green, 312 P.3d 669, 675 (Wash. App. 2013) (recognizing the validity of this principle, although it was not the basis of the court's holding).
Accordingly, we affirm the judge's ruling denying suppression of the evidence seized during the initial illegal search of the cabin.
Why we remand Indellicati's case for reconsideration of his sentence
Indellicati appeals his composite sentence of approximately 21½ years to serve. He argues that the sentencing judge was mistaken when she ruled that the State had proved aggravator AS 12.55.155 (c)(10) (conduct amongthe most serious within the definition of the offense). Indellicati also argues that the judge was clearly mistaken when she imposed a sentence more than double the 10-year maximum sentence for Indellicati's most serious crime, first-degree burglary.
Indellicati was twenty-three years old at the time of this crime spree. He burglarized fifteen cabins. Some of these burglaries were accompanied by theft or by acts of criminal mischief. Although Indellicati had been previously convicted of four felonies, he had only been incarcerated once, for 200 days. The judge characterized his crimes as follows:
[H]ere's where I kind of look at what these two young men were doing. They were playing at being criminals. ... I don't know why they felt that this is how they wanted to define themselves, but they ... didn't find themselves in an isolated environment, they placed themselves intentionally in an isolated environment where they could engage in mayhem. And it's entirely possible that they figured, well, there are not
going to be a lot of people out there, so we can shoot them up and knock them down and do all of this stuff, and, you know, nobody's really going to get hurt; and we're just going to go out there and have some fun.
And I want them both to know, I don't think they're evil people at all. I think for them it was a — I do think it was a form of entertainment. It wasn't an intent to individually harm [the cabin owners]. They never thought about them. They had no empathy for them. I really think in a way it was just a form of entertainment. And on the one hand, that means, you know, they didn't have the degree of malice that one has if you go out intending to harm that person or their property. On the other hand, it demonstrates a complete lack of compassion and respect for their fellow man.
The maximum sentence for Indellicati's most serious crime, first-degree burglary, is 10 years' imprisonment — and, as a third felony offender, Indellicati faced a presumptive sentencing range of 6 to 10 years. The author of the presentence report recommended a "moderate" amount of time to serve, with 7 years' probation.
AS 11.46.300(b) (declaring that first-degree burglary is a class B felony), AS 12.55.125(d) (declaring that the maximum penalty for a non-sexual class B felony is 10 years' imprisonment), and former AS 12.55.125(d)(4) (2010) (establishing a presumptive sentencing range of 6 to 10 years' imprisonment for third felony offenders convicted of a non-sexual class B felony).
The judge sentenced Indellicati to serve 8 years for the burglary of what she termed the "first cabin." Then, for each of the other fourteen burglaries, the judge imposed a partially consecutive (but mostly concurrent) sentence — for a composite term of slightly less than 21½ years to serve.
This sentence implicates two issues that we discussed in Phelps v. State: the proper application of the Neal-Mutschler rule, and the "stacking" of sentences — i.e., the imposition of a separate consecutive sentence for each one of a defendant's multiple crimes.
Phelps v. State, 236 P.3d 381, 386, 393 (Alaska App. 2010).
Given the length of Indellicati's composite sentence — over twice the maximum sentence for his most serious crime, first-degree burglary — the judge was required to address the Neal-Mutschler rule. Under that rule, when a defendant is sentenced for two or more crimes, the defendant's composite active term of imprisonment may not exceed the maximum term of imprisonment for the defendant's single most serious crime, unless the judge affirmatively finds that a longer term is necessary to accomplish the goals of sentencing.
See Phelps, 236 P.3d at 392-93 (citing Neal v. State, 628 P.2d 19 (Alaska 1981), and Mutschler v. State, 560 P.2d 377 (Alaska 1977)).
While Indellicati's sentencing judge discussed various factors that could potentially justify a sentence exceeding 10 years to serve, she did not expressly refer to the Neal-Mutschler rule. We therefore cannot tell whether she considered that rule and, if she did, why she decided to impose a composite sentence that is more than double the 10-year maximum sentence for any one of Indellicati's burglaries.
We accordingly remand Indellicati's case to the superior court for reconsideration of his sentence under the Neal-Mutschler rule.
When the superior court reconsiders Indellicati's sentence, the court should consider an issue that we discussed in Phelps v. State: the question of "stacking" — i.e., the imposition of consecutive sentences for each crime in a series of crimes. As we noted in Phelps,
Phelps, 236 P.3d at 385-86.
the ABA no longer endorses a rule forbidding a judge from exceeding the sentence for the defendant's most serious
offense except in special situations. Rather, § 18-3.7(d) [of the ABA Standards for Criminal Justice] declares that if the sentencing judge determines that a more severe sentence is appropriate, "the enhancement should ordinarily be determined as if the other current offenses were treated as part of the offender's criminal history or as factors aggravating the [defendant's] most serious offense."
Id.
Under this approach, a defendant's commission of a series of offenses can justify a composite sentence that is longer than the maximum sentence for the defendant's most serious offense, but this does not mean that a sentencing court can simply "stack" the individual sentences that the court would have imposed if each of the defendant's crimes was considered separately.
Id. at 386. --------
Conclusion
We AFFIRM Indellicati's and Cross's convictions, but we direct the superior court to reconsider Indellicati's sentence, and we retain jurisdiction of his case for this purpose. If, after the superior court reconsiders his sentence, Indellicati no longer wishes to challenge his composite sentence, he shall notify this Court. If Indellicati wishes to seek further review of his sentence, he shall file a supplemental brief within thirty days of the superior court's decision. The State may then file a responsive brief within thirty days. After we have received these briefs, we will resume our consideration of Indellicati's sentence.