Opinion
Court of Appeals No. A-12349 No. 6719
10-10-2018
SHANA LEE JONES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Brooke Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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-12-3089 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Kari C. Kristiansen, Judge. Appearances: Brooke Berens, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
In June 2012, Shana Lee Jones pleaded guilty to fourth-degree misconduct involving a controlled substance (for possessing .28 grams of heroin) and received a suspended imposition of sentence (SIS). As a special condition of the SIS, the court ordered Jones to serve 120 days' incarceration. The court ordered a delayed remand date of July 31, which was later extended to September 14.
In August, while awaiting her remand to custody, Jones was pulled over by the police for a vehicle equipment malfunction. During a search of Jones's vehicle, the police discovered approximately 76 grams of heroin on the passenger seat; the passenger said that Jones had given him the drugs. (Jones denied this.) The police later searched Jones's purse pursuant to a search warrant. Inside the purse, the police discovered a ledger for the sale of drugs, a bindle containing .4 grams of heroin, empty baggies, and nearly $4,000 in cash.
For the conduct occurring in August, Jones agreed to plead guilty to second-degree misconduct involving a controlled substance (possessing heroin with intent to deliver). In exchange for her plea, the State dismissed additional charges, and Jones agreed to open sentencing. Jones also agreed that she had violated the probation from her prior SIS.
Former AS 11.71.020(a)(1) (2012).
At the time of Jones's offense, second-degree controlled substance misconduct was a class A felony. As a second felony offender, Jones faced a presumptive sentencing range of 10 to 14 years. Prior to sentencing, Jones asked the court to refer her case to the statewide three-judge sentencing panel on two grounds: (1) that she had extraordinary potential for rehabilitation, and (2) that the 10-year minimum presumptive term was manifestly unjust.
Former AS 11.71.020(d) (2012).
Former AS 12.55.125(c)(3) (pre-2016 version).
See AS 12.55.165 (setting out the bases for referring a case subject to presumptive sentencing to the three-judge sentencing panel).
At the sentencing hearing, the parties disputed the applicability of an aggravating factor, AS 12.55.155(c)(12) — that Jones was on bail release for another felony charge or conviction at the time she committed the current offense. The court found this aggravating factor and concluded that, as a result, the court lacked the authority to refer Jones's case to the three-judge panel. (As we discuss later in this opinion, to the extent the court concluded that the aggravator completely precluded referral of Jones's case to the three-judge panel, this ruling was incorrect; the aggravator precluded referral based on extraordinary potential for rehabilitation but not based on the manifest injustice of the presumptive range.)
See AS 12.55.165(b).
In the alternative, the court found that, even assuming it had the authority to refer Jones's case to the three-judge panel, referral was not warranted.
Following the parties' sentencing arguments, the court imposed a sentence of 14 years with 4 years suspended (10 years to serve). In Jones's prior case, the court revoked Jones's SIS, entered a conviction of record for fourth-degree misconduct involving a controlled substance, and imposed a consecutive sentence of 120 days to serve.
This appeal followed. On appeal, Jones argues that (1) the trial court improperly found the (c)(12) aggravator, and (2) the trial court's erroneous understanding of Jones's discretionary parole eligibility impacted its decision to deny referral of Jones's case to the three-judge panel.
For the reasons explained in this opinion, we conclude that the trial court was statutorily precluded from referring Jones's case to the three-judge panel based on extraordinary potential for rehabilitation. However, we remand Jones's case to the trial court to reconsider whether the low end of the applicable presumptive range is manifestly unjust as applied to Jones.
The trial court was statutorily precluded from referring Jones's case to the three-judge panel based on extraordinary potential for rehabilitation
Alaska Statute 12.55.165 governs referral of a presumptive sentencing case to the statewide three-judge panel. Under AS 12.55.165(b), a sentencing judge is prohibited from referring a case to the three-judge panel based on the defendant's potential for rehabilitation if the judge finds one of several aggravating factors, including aggravating factors AS 12.55.155(c)(12) and (c)(20).
See Scholes v. State, 274 P.3d 496, 502 (Alaska App. 2012).
On appeal, Jones argues that the trial court erred in finding the (c)(12) aggravator. Under AS 12.55.155(c)(12), a defendant's sentence may be aggravated if "the defendant was on release under AS 12.30 for another felony charge or conviction or for a misdemeanor charge or conviction having assault as a necessary element." Jones contends that the (c)(12) aggravator was inapplicable because she was not on bail release under AS 12.30, but rather on probation, at the time she committed the offense in this case.
We need not resolve the applicability of the (c)(12) aggravator because, as Jones acknowledges, the superior court found as a factual matter that Jones was on felony probation at the time she committed this offense. This factual finding is supported by the record. Indeed, Jones admitted to violating her felony probation as part of the plea agreement in this case.
Under AS 12.55.155(c)(20), a defendant's sentence may be aggravated if "the defendant was . . . on parole or probation for another felony charge or conviction that would be considered a prior felony conviction under AS 12.55.145(a)(1)(B)." As a legal matter, Jones's SIS qualified as a prior felony conviction under AS 12.55.145.
See Shaw v. State, 673 P.2d 781, 785-86 (Alaska App. 1983).
Accordingly, even if the court erred in finding the (c)(12) aggravator, this error was harmless given the obvious applicability of the (c)(20) aggravator. And the presence of the (c)(20) aggravator precluded the court from referring Jones's case to the three-judge panel based on her potential for rehabilitation.
Cf. Snelling v. State, 123 P.3d 1096, 1098-99 (Alaska App. 2005) (failure to hold a jury trial, for purposes of Blakely v. Washington, on probationary status of defendant at the time he committed the current offense was harmless beyond a reasonable doubt given the undisputed fact that defendant was on felony probation); Bowley v. State, 2007 WL 2069539, at *5 (Alaska App. July 18, 2007) (unpublished) (finding any Blakely error harmless given simultaneous probation revocation based on new offenses for which defendant was being sentenced).
Why we remand for the trial court to reconsider referral to the three-judge panel based on manifest injustice of the applicable presumptive range
Although the court was precluded from referring Jones's case to the three-judge panel based on her potential for rehabilitation, the presence of aggravating factor (c)(20) did not preclude the court from referring Jones's case to the three-judge panel on other grounds, including the manifest injustice of the applicable presumptive range.
Jones argues on appeal that the superior court incorrectly believed that Jones would be eligible for discretionary parole after serving one-third of her sentence, and that this misperception impacted the court's decision to deny referral of Jones's case to the three-judge panel. Having reviewed the record, we agree that this is a plausible reading of the record and that a remand is required.
At sentencing, the prosecutor informed the court that Jones would be eligible for discretionary parole after serving one-third of her sentence. The superior court adopted the State's view of Jones's discretionary parole eligibility. But this view was mistaken.
Under AS 33.16.090(b)(7)(C), a prisoner sentenced to consecutive sentences may not be released on discretionary parole until the prisoner has served the amount of time required to be served for the prisoner's primary crime, had that been the only sentence imposed, plus one-quarter of the additional time imposed consecutively for all crimes other than the primary crime. Under the version of AS 33.16.090 in effect at the time of Jones's sentencing, Jones is not eligible for discretionary parole on her primary crime—the second-degree controlled substances misconduct—until she serves the entire term imposed, less good time credit (that is, until she serves two-thirds of her 10-year sentence). Additionally, Jones is required to serve one-quarter of her consecutive 120-day sentence before she becomes eligible for parole.
See former AS 33.16.090(b)(2) (pre-2017 version); AS 33.20.010(a).
See former AS 33.16.090(b)(7)(C) (pre-2017 version). We note that since Jones was sentenced in May 2015, the sentencing laws have significantly changed. In 2016, the Alaska Legislature reduced the applicable sentencing range. SLA 2016, ch. 36, § 88 (amending applicable presumptive sentencing range from 10 to 14 years to 8 to 12 years). This amendment applied only to sentences imposed on or after the effective date of the amendment in July 2016. SLA 2016, ch. 36, §§ 88, 185(u)(1), 188.
The legislature also amended the discretionary parole statute. SLA 2016, ch. 36, § 124. Under the amended statute, a person who receives a sentence for a class A felony that is within the applicable presumptive range is now eligible for discretionary parole. See AS 33.16.090(b)(5) (effective Jan. 1, 2017). The amended statute applied only to sentences imposed on or after January 1, 2017. SLA 2016, ch. 36, §§ 124, 185(d)(10), 190.
There is one exception to this discretionary parole eligibility calculation: had the trial court referred Jones's case to the three-judge panel based on the manifest injustice of the presumptive range, the panel would have been authorized, under our decision in Luckart v. State, to expand Jones's eligibility for discretionary parole.
See Luckart v. State, 314 P.3d 1226, 1234 (Alaska App. 2013) (interpreting AS 12.55.175(c)).
But because the court did not refer Jones's case to the three-judge panel, Jones will not be eligible for discretionary parole until she has served two-thirds of her 10-year sentence (6 years, 8 months), plus one-quarter of her 120-day sentence (30 days) — approximately 6 years and 9 months. She will not, as the prosecutor suggested, be eligible for discretionary parole after serving one-third of her sentence (approximately 3 years and 5 months). This is a difference of 3 years and 4 months. Indeed, Jones's discretionary parole eligibility date is only 50 days earlier than the date she would otherwise be eligible for mandatory parole (two-thirds of her total sentence, or just over 6 years and 10 months).
AS 33.20.010.
When the superior court ruled on Jones's request to refer her case to the three-judge panel, the court incorporated its misunderstanding of Jones's discretionary parole eligibility into its decision. With respect to Jones's claim regarding the manifest injustice of the presumptive range, the court found:
The low end of the presumptive range which is 10 [years] . . . allows for the mandatory parole at two-thirds and discretionary parole at one-third. And given the steps that she's taken while she's been in custody, there is a good prospect I think for her being able to avail herself of either of those patterns somewhere between the one-third and the two-thirds range.
So, I don't think this is a situation . . . where it says to the court the low end of the sentence is manifestly unjust given the circumstances that are before the court. And this is not a
situation of a low end, you know, small drug dealer. When someone is holding 76 grams of heroin, under anyone's calculation, that's a big heroin business. So, there is in terms of the conduct that supports the underlying offense and the sentence, I think that there's not been a showing — a sufficient showing that it's manifestly unjust to impose the minimum time, which is 10 to serve.Based on these remarks, the superior court appears to have declined referral to the three-judge panel at least in part because it believed that Jones—who had already completed treatment and other programs while in custody — would be eligible for discretionary parole after serving one-third of her sentence.
This conclusion is buttressed by the court's subsequent findings on Jones's potential for rehabilitation. (As noted earlier, although the court found an aggravating factor that precluded referral to the three-judge panel based solely on Jones's potential for rehabilitation, the court alternatively ruled on the merits of Jones's application on this ground.) In denying referral to the three-judge panel on the basis of extraordinary potential for rehabilitation, the court recognized that Jones had availed herself of drug rehabilitation programs and other classes while in custody; indeed, the record shows that Jones had completed the LSSAT (Life Success Substance Abuse Treatment) program along with other classes and had actively engaged in aftercare. The court discounted the significance of these classes in analyzing whether Jones had extraordinary rehabilitative potential, noting that they had occurred "in a controlled setting." But the court acknowledged that the programs were "very helpful and . . . might help [Jones] in getting early parole."
As we explained earlier, the court could have referred Jones's case to the three-judge panel on the ground that it would be manifestly unjust to sentence Jones to a term within the 10- to 14-year presumptive range unless Jones was granted expanded eligibility for discretionary parole. But it was incorrect for the court to conclude that, absent this referral, Jones was eligible for any meaningful early discretionary parole release.
The State argues that Jones's parole eligibility was not essential to the court's decision to decline referral of Jones's case to the three-judge panel. But while the court's remarks certainly suggest several reasons for the trial court's denial, we are unable to say based on the record before us that the court's mistaken understanding of Jones's discretionary parole eligibility did not affect its decision to decline referral to the panel.
The State also argues that even if the court's statements about discretionary parole had some impact on its decision to deny referral to the panel, the court's decision was nonetheless correct. The State therefore contends that we should affirm the superior court's decision since (according to the State) we review a court's decision to deny referral de novo.
But in support of its argument, the State cites cases involving the denial of a mitigating factor, which requires application of our independent judgment to a given set of facts. Here, we are reviewing the trial court's ruling that the low end of the applicable presumptive range was not manifestly unjust. We review this type of ruling under the "clearly mistaken" standard of review. We therefore direct the trial court to reconsider its decision in the first instance, in light of our clarification of Jones's parole eligibility.
See, e.g., Michael v. State, 115 P.3d 517, 521 (Alaska 2005).
See Knipe v. State, 305 P.3d 359, 363 (Alaska App. 2013).
Compare Avery v. State, 2009 WL 692089, at *3 (Alaska App. Mar. 18, 2009) (unpublished) (remanding case for clarification where the record of the sentencing decision suggested that the trial court may have misunderstood the defendant's parole eligibility at the time the court entered sentence), with Evans v. State, 2017 WL 3662457, at *3 (Alaska App. Aug. 23, 2017) (unpublished) (declining to remand when the trial court properly understood defendant's parole ineligibility at the time of sentencing, and only later, during the truth-in-sentencing advisement, questioned its initial understanding). Cf. Endell v. Johnson, 738 P.2d 769, 771-72 (Alaska App. 1987) (remanding for resentencing where record was unclear as to whether trial court properly understood that prior service credit could only be granted against one of the defendant's two consecutive sentences).
We address one further claim. To the extent that Jones is arguing that she is entitled to be re-sentenced by the superior court because of the court's mistaken understanding of her parole eligibility (independent of the trial court's decision to decline referral to the three-judge panel), we reject this claim. The court imposed an active sentence at the low end of the presumptive range (10 years). Absent referral to the three-judge panel or proof of a statutory mitigating factor, the court had no authority to impose an active term of imprisonment below 10 years.
AS 12.55.125(n); AS 12.55.155(a)(2).
Jones argues that the trial court "may well have imposed less suspended time or a shorter probationary period, or the flat-time sentence requested by the defense" had it properly understood that Jones was not eligible for discretionary parole after serving only one-third of her sentence. But discretionary parole eligibility is calculated based on a defendant's active term of incarceration. Neither the length of a defendant's suspended term of imprisonment nor the length of a defendant's probationary term impacts the calculation of the defendant's discretionary parole eligibility on her underlying sentence. Jones does not explain how the court's mistakenly favorable view of Jones's discretionary parole eligibility negatively affected these other, non-active term components of Jones's sentence.
See AS 33.16.090.
Moreover, there is no indication in the record that the court's view of Jones's discretionary parole eligibility impacted its ultimate sentencing decision. After the court declined to refer Jones's case to the three-judge panel, the court did not again mention Jones's parole eligibility during the remainder of the sentencing hearing, including during the imposition of sentence.
We note that, while a trial court may refer a case subject to presumptive sentencing to the three-judge panel for purposes of expanding a defendant's parole eligibility, a court may not impose a longer sentence on the assumption that the defendant will be released on parole on a certain, earlier date. Rather, the court must impose a sentence based on the assumption that the defendant may serve the entire term imposed. We will not infer, absent some affirmative indication in the record, that the court violated this principle.
See Luckart v. State, 314 P.3d 1226, 1234 (Alaska App. 2013).
Jackson v. State, 616 P.2d 23, 24-25 (Alaska 1980).
Id. --------
Accordingly, we remand Jones's case to the trial court to reconsider whether the 10-year minimum presumptive term is manifestly unjust in Jones's case, given a correct understanding of Jones's parole eligibility.
Jones's challenges to her probation conditions
Jones raises several challenges to her probation conditions. Because we are remanding Jones's case to the superior court to reconsider referral to the three-judge panel, we will defer our consideration of Jones's challenges to her probation conditions until after the remand proceedings are completed. If the superior court refers Jones's case to the three-judge panel, and the three-judge panel vacates Jones's current sentence and imposes a new sentence, it shall consider Jones's probation conditions anew.
Conclusion
We REMAND Jones's case to the superior court to reconsider the question of whether imposition of a 10-year sentence is manifestly unjust as applied to Jones. The court may hold an additional hearing to consider this question.
If the superior court again declines referral to the three-judge panel, it shall notify this Court of its decision within sixty days of the issuance of this opinion. At that point, if Jones wishes to challenge the superior court's decision, she shall file a sentencing memorandum in this Court within thirty days of distribution of the superior court's decision. The State shall then have thirty days to file a responding memorandum. We will then consider the remaining issues in Jones's appeal.
If the superior court refers Jones's case to the three-judge sentencing panel, and the three-judge panel declines to sentence Jones, her original sentence shall remain. Within thirty days of the distribution of the three-judge panel's decision, Jones shall have the right to file a sentencing memorandum in this Court. The State shall then have thirty days to file a responding memorandum. We will then consider the remaining issues in Jones's appeal.
If the three-judge panel accepts Jones's case and imposes sentence, Jones may appeal that sentence if she wishes by filing a motion in the present appeal within thirty days of distribution of the amended judgment. At that point, the record will be prepared, and briefing will proceed as provided in the Appellate Rules.
In each instance, Jones may, if appropriate, move for the preparation of additional transcripts.
We retain jurisdiction of this case.