Opinion
Court of Appeals No. A-10198.
March 4, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge, Trial Court No. 4FA-07-00934 CR.
Jennifer Hite, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the A ppellant. Jenel M. Domke, Assistant District Attorney, J. Michael Gray, District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Christopher M. McCrea violently sexually assaulted the thirteen-year-old daughter of a friend. Although the State initially charged him with several offenses, including sexual assault in the first degree, an unclassified felony, McCrea entered into an agreement to plead to sexual assault in the second degree, a class B felony. McCrea was a third-felony offender for purposes of presumptive sentencing and faced a presumptive term of 20 to 35 years of imprisonment. The maximum sentence McCrea could receive was 99 years of imprisonment. Under the plea agreement, McCrea and the State agreed that McCrea would receive a sentence of between 25 and 30 years to serve. The amount of any additional suspended term of imprisonment and the amount of time that McCrea would serve on probation were left to the discretion of the sentencing judge, Superior Court Judge Douglas Blankenship. McCrea agreed that several aggravating factors applied: (1) a person sustained physical injury as a direct result of his conduct; (2) he had a criminal history of repeated instances of assaultive behavior; (3) the conduct constituting his offense was among the most serious included in the definition of the offense; and (4) he had a criminal record of five or more class A misdemeanors.
AS 11.41.420(a)(1).
AS 12.55.125(i)(3)(D).
AS 12.55.125(i)(3).
AS 12.55.155(c)(1), (c)(8), (c)(10), (c)(31), respectively.
In sentencing McCrea, Judge Blankenship first emphasized the serious nature of the crime and the severe effect that the crime had on the victim and her family. He also emphasized McCrea's extensive and nearly continuous criminal record and concluded that, although McCrea desired to be rehabilitated, the prospects for his rehabilitation were "tenuous." Judge Blankenship imposed a sentence of 55 years of imprisonment with 25 years suspended. He ordered McCrea to serve a probationary period of 15 years.
McCrea argues that Judge Blankenship was clearly mistaken in imposing the 25 years of additional suspended incarceration. But given the severe nature of McCrea's current offense, his extensive prior criminal record, and his failures on probation, Judge Blankenship could properly determine that 25 years of suspended incarceration was necessary to protect the public. We conclude that the sentence is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (adopting the "clearly mistaken" standard in the review of sentence appeals).
We note, however, that McCrea committed his crime on March 25, 2007. At that time, the maximum probation period authorized by AS 12.55.090(c) was 10 years. The minimum probation period for McCrea's offense was also 10 years. Alaska Statute 12.55.090(c) was amended in 2007 to allow imposition of up to 25 years of probation for felony sex offenses, but that amendment did not take effect until July 1, 2007 (a little over three months after McCrea committed his crime). In prior decisions, the Alaska Supreme Court and this court have assumed, without deciding, that retroactive application of a law that increases the length of the maximum period of probation would violate the ex post facto clause of the United States and Alaska Constitutions. We therefore remand this case to the trial court to reexamine the length of the period of probation.
Former AS 12.55.090(c) (2006).
Former AS 12.55.125(o)(2), effective April 28, 2006.
Ch. 24, § 22, SLA 2007.
Ch. 24, § 39, SLA 2007.
See Doe v. State, 189 P.3d 999, 1012 n. 99 (Alaska 2008); State v. Anthony, 816 P.2d 1377, 1379 (A laska 1991); W ray v. State, Alaska App. Memorandum Opinion No. 3590 at 10 (April 9, 1997), 1997 WL 165438 at *4; see also People v. Williams, 246 Cal. Rptr. 464, 466-67 (Cal.App. Dep't Super. 1988) (holding that the ex post facto clause prohibited retrospective application of a statute that increased the maximum potential term of probation); People v. Martinez, 243 Cal. Rptr. 66, 71-73 (Cal.App. 1988) (holding that the ex post facto clause prohibited retrospective application of a statute that prohibited a court from suspending a sentence of imprisonment and granting probation to certain types of offenders); People v. Pérez, 80 Cal. Rptr. 2d 188, 194 (Cal.App. 1998) ("Retrospective application of new or amended probation statutes that adversely affect defendants has been held to violate the prohibition against ex post facto laws.").
The case is REMANDED to the superior court. We do not retain jurisdiction.