MANNHEIMER

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.

MEMORANDUM OPINION

No. 5941

Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge.

Appearances: Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

Judge MANNHEIMER.

Starla Miller was convicted of second-degree sexual abuse of a minor, based on evidence that Miller convinced her nine-year-old daughter to suck Miller's breast in exchange for a payment of $100. For this offense, Miller received a sentence of 8 years' imprisonment with 5 years suspended — 3 years to serve.

In this appeal, Miller's primary contention is that her sentencing judge should have referred her case to the three-judge panel, on the basis that even the minimum sentence available to the sentencing judge — 2½ years to serve, with no eligibility for discretionary parole — would be manifestly unjust under the facts of Miller's case.

For the reasons explained here, we affirm the sentencing judge's decision.

Underlying facts

Although Miller had several prior misdemeanor convictions, she was a first felony offender, and she therefore faced a presumptive sentencing range of 5 to 15 years' incarceration for the offense of second-degree sexual abuse of a minor.

In advance of Miller's sentencing hearing, her attorney filed a motion asking the sentencing judge — Superior Court Judge Patricia A. Collins — to refer Miller's case to the statewide three-judge sentencing panel under AS 12.55.165. Judge Collins granted this motion because she concluded that even if Miller proved one or more mitigating factors — factors that would authorize Judge Collins to reduce Miller's sentence to 50 percent of the bottom of the presumptive range (2½ years, without eligibility for discretionary parole) — such a sentence would still be manifestly unjust. In particular, Judge Collins indicated that, given Miller's history and the unusual circumstances of her offense, a presumptive term of imprisonment would be manifestly unjust because Miller would not be eligible for discretionary parole.

Judge Collins therefore drew up an order referring Miller's case to the statewide three-judge sentencing panel. However, before that could happen, Miller violated the terms of her bail release — by getting drunk and attending her daughter's dance recital, where she threw an object at her daughter and suggested that it was her daughter's fault that she (Miller) was facing imprisonment. As a result of this incident, Miller was charged with two new misdemeanors — violating the conditions of her release, and fourth-degree assault. Miller was also indicted for the felony offense of interference with official proceedings (under the theory that she retaliated against her daughter for the testimony that the daughter gave at Miller's trial).

Based on this new criminal episode, Judge Collins rescinded her order referring Miller's case to the three-judge panel. The judge stated that, because of "the events that occurred while Ms. Miller was on release awaiting [sentencing]", she had changed her mind about the perceived injustice of a 2½-year presumptive term of imprisonment.

Miller ultimately reached a plea agreement with the State, under which she pleaded guilty to the two misdemeanors and the State dismissed the felony. Miller was then sentenced by Judge Collins on the two misdemeanors and the original second-degree sexual abuse of a minor conviction.

With regard to the sexual abuse conviction, Judge Collins found one mitigating factor: that Miller's conduct was among the least serious within the definition of the offense. Judge Collins ultimately sentenced Miller to 8 years with 5 years suspended — 3 years to serve.

(Judge Collins sentenced Miller to consecutive sentences of 8 months and 3 months, respectively, for the misdemeanor offenses of violating the conditions of her release and fourth-degree assault.)

Miller now appeals, contending that Judge Collins should have referred her case to the three-judge panel despite her additional misconduct while she was awaiting sentencing.

Alternatively, Miller contends that even if Judge Collins properly declined to refer her case to the three-judge panel, Judge Collins should still have given more weight to mitigating factor (d)(9) (i.e., that Miller's conduct was among the least serious within the definition of the offense), and should have imposed a lesser sentence — a sentence closer to the minimum sentence of 2½ years to serve.

A brief description of Miller's sentencing claims

As we explained earlier, Miller was subject to a presumptive sentencing range of 5 to 15 years' imprisonment. Miller ultimately received a sentence of 3 years to serve because she proved a mitigating factor (mitigator (d)(9)), and because, based on this mitigator, Judge Collins exercised her authority under AS 12.55.155(a)(2) to impose a sentence below the presumptive range.

In this appeal, Miller attacks the severity of her sentence on three grounds.

First, Miller asserts that, even after she violated the conditions of her release and assaulted her daughter, Judge Collins's initial impression about the case remained correct — in other words, it remained manifestly unjust to sentence Miller to a term of imprisonment (even as little as 2½ years) without the possibility of discretionary parole. Miller therefore argues that Judge Collins should have referred her case to the three-judge panel, because that panel was the only judicial body authorized to impose a sentence that would leave Miller eligible for discretionary parole.

Second, Miller notes that when Judge Collins sentenced her to 8 years' imprisonment with 5 years suspended, the judge placed Miller on probation for 5 years. Miller concedes that this portion of her sentence was unlawfully lenient: AS 12.55.125(o)(2) declares that defendants convicted of a class B sexual felony (such as second-degree sexual abuse of a minor) must be placed on probation for at least 10 years. However, Miller argues that the three-judge panel would have the authority to reduce this term of probation to 5 years — and that, therefore, this is an independent reason why Judge Collins should have referred Miller's case to the three-judge panel.

Finally, Miller argues that Judge Collins should not have sentenced her to serve 5 years in prison. Miller contends that Judge Collins should have placed greater weight on the mitigating factor (i.e., that Miller's conduct was among the least serious within the definition of the offense), and that the judge should have exercised her authority under AS 12.55.155(a)(2) to impose a sentence closer to the 2½-year minimum term authorized by that statute.

This last argument is based on a misreading of Miller's sentence (8 years with 5 years suspended). Judge Collins did not sentence Miller to serve 5 years in prison. Instead, the judge sentenced Miller to serve 3 years in prison. In other words, Judge Collins did precisely what Miller argues she should have done: the judge did place substantial weight on the mitigating factor, and she did exercise her authority under AS 12.55.155(a)(2) to impose a sentence below the presumptive range. In fact, Miller's 3-year sentence is quite close to the minimum sentence allowed by that statute (2½ years to serve).

Thus, in practical terms, Miller's contention that Judge Collins should have placed more weight on the mitigating factor amounts to the argument that Judge Collins should have sentenced Miller to serve 2½ years rather than 3 years.

The State, in its brief, addresses two other contentions that Miller raised in the superior court, but which Miller did not address in her opening brief: first, the contention that Judge Collins should have referred Miller's case to the three-judge panel because of Miller's alleged extraordinary potential for rehabilitation; and second, the contention that this Court should recognize a new non-statutory mitigator for cases involving sexual abuse of a minor where the defendant did not commit the crime to obtain sexual gratification.

After the State addressed these two issues in its brief, Miller filed a reply brief in which, for the first time, she too argued these issues.

Because Miller did not address these two issues in her opening brief, they are waived, and we will not discuss them further in this opinion.

Miller's claim that Judge Collins should have referred her case to the three-judge panel because any sentence within Judge Collins's authority — even a presumptive term of as little as 2½ years — would be manifestly unjust because it would not include eligibility for discretionary parole

As we noted in the preceding section, Miller asserts that, even after she violated the conditions of her release and assaulted her daughter, any sentence within Judge Collins's authority — i.e., even a sentence of as a little as 2½ years to serve — would be manifestly unjust. Miller notes that any term of imprisonment imposed by Judge Collins would be a "presumptive" term, and thus Miller would not be eligible to apply for discretionary parole release during her service of that sentence. See AS 33.16.090(b)(2). According to Miller, this lack of discretionary parole eligibility is the factor that makes her sentence (and any other sentence that Judge Collins might have imposed) manifestly unjust.

The State argues that Miller's sentence is not manifestly unjust, even though Miller is not eligible to apply for discretionary parole. But the State also makes an additional argument: the State contends that a provision of Alaska's sentence appeal statute, AS 12.55.120(e), precludes Miller from attacking her sentence, even if that sentence is manifestly unjust.

As the appellee, the State is entitled to argue for affirmance of the superior court's decision on any basis revealed by the record, but the facts of the case and the pertinent law must clearly establish this alternative basis for affirmance. State v. Walker, 283 P.3d 668, 674 (Alaska App. 2012).

In Miller's case, it is not clear that AS 12.55.120(e) precludes Miller from attacking her sentence. Subsection 120(e) declares that a felony defendant may not appeal "[a] sentence within [the] applicable presumptive [sentencing] range". But as we have explained, Miller's sentence is not within the applicable presumptive range. Miller proved a mitigating factor and Judge Collins, relying on this mitigating factor, exercised her authority under AS 12.55.155(a) to impose a sentence below the presumptive range.

(The applicable presumptive range was 5 to 15 years' imprisonment. Miller received 3 years to serve.)

Of course, one might argue that if the legislature enacted a statute prohibiting sentence appeals for defendants who receive a sentence within the applicable presumptive range, the legislature would probably also want to prohibit sentence appeals for defendants who receive a sentence below the applicable presumptive range. But the statute does not say this. Thus, the State asks us to interpret the statute in a more expansive manner than its literal language suggests, but the State offers no legislative history or other authority to support its position.

Because the State's interpretation of the statute is merely debatable, we reject the State's argument that AS 12.55.120(e) precludes Miller from attacking her sentence. (We do not intend to foreclose further litigation of this issue. We say only that, given the record and the briefing currently before us, the State has not shown that its suggested interpretation of the statute is clearly correct.)

We therefore return to Miller's contention that Judge Collins should have referred Miller's case to the three-judge panel because (1) any sentence of imprisonment would be manifestly unjust unless Miller was eligible to apply for discretionary parole, and (2) the three-judge panel is the only judicial body authorized to grant parole eligibility to a felony offender sentenced under the presumptive sentencing laws.

In making this argument, Miller points out that her offense was not a typical act of sexual abuse, and she further points to various aspects of her offense and her personal history which suggest that she is not a dangerous offender, and that she has good prospects for rehabilitation. But Judge Collins was not required to view the facts in the light most favorable to Miller, especially given Miller's conduct while awaiting sentencing.

As we have explained, Judge Collins recognized that Miller's offense was not a typical act of sexual abuse. This was the reason Judge Collins found mitigator (d)(9) — that Miller's conduct was among the least serious conduct within the definition of the offense. Moreover, Judge Collins did not simply find this mitigator; she made a significant adjustment to Miller's sentence based on this mitigator — imposing a sentence of 3 years' imprisonment, when the bottom of the applicable presumptive range was 5 years.

Given the totality of Miller's conduct, and given the significant downward adjustment that Miller has already received based on the mitigating factor, we conclude that a sentence of 3 years' imprisonment is not manifestly unjust, even though Miller is not eligible to apply for discretionary parole. We note that Miller is eligible for mandatory parole after serving 2 years of this sentence (assuming that she does not forfeit any good time credit).

Miller's claim that Judge Collins should have referred her case to the three-judge panel because only the three-judge panel could impose a period of probation less than 10 years

As we have already noted, Judge Collins suspended 5 years of Miller's sentence of imprisonment and, concomitantly, placed Miller on probation for a period of 5 years. This period of probation was illegally short: AS 12.55.125(o)(2) declares that defendants convicted of a class B sexual felony (such as second-degree sexual abuse of a minor) must be placed on probation for at least 10 years.

Miller argues that if Judge Collins had realized that she was required to place Miller on probation for 10 years, she would have referred Miller's case to the three-judge panel so that the panel could reduce the length of Miller's probation to 5 years.

But Miller provides no legal authority for her assertion that the three-judge panel could impose less than 10 years of probation. Moreover, there is nothing in the record to suggest that Judge Collins understood the 10-year requirement but believed that it was inordinately severe, and thus ordered only 5 years of probation.

In particular, we note that Miller did not raise this issue in the superior court. That is, Miller did not alert Judge Collins to the 10-year probation requirement and then explicitly argue that 10 years of probation was overly severe. Not only did Miller fail to ask Judge Collins to relax this requirement herself, but Miller also failed to ask Judge Collins to refer the case to the three-judge panel on this basis. And because this issue was not litigated in the superior court, Judge Collins made no findings regarding the length of Miller's probation, or how the length of the probation either did or did not make Miller's sentence "manifestly unjust".

Only on appeal has Miller suggested that her case should have been referred to the three-judge panel so that she could ask for relaxation of the statutory requirement of 10 years' probation. But even if the three-judge panel had the authority to relax this 10-year requirement (a question we leave unanswered), it would be up to Judge Collins — not this Court — to make the initial assessment as to whether a 10-year term of probation rendered Miller's sentence manifestly unjust. As an appellate court, this Court can not make that assessment on a barren record.

We therefore reject Miller's argument that her case should have been referred to the three-judge panel on the basis that a 10-year period of probation made her sentence manifestly unjust.

Indeed, because Miller's sentence is clearly illegal as it now stands (since Miller's period of probation is only 5 years), and because the illegality of a sentence can be raised at any time (see Alaska Criminal Rule 35(a)), we must remand Miller's case to the superior court for correction of this aspect of her sentence.

Miller's claim that, even if Judge Collins need not have referred her case to the three-judge panel, Judge Collins still should have given more weight to mitigator (d)(9) — that is, more weight to the fact that Miller's conduct was among the least serious within the definition of second-degree sexual abuse of a minor

As we explained toward the beginning of our opinion, Miller presented this argument in her opening brief under the mistaken assumption that Judge Collins had sentenced her to serve 5 years in prison (i.e., the low end of the applicable presumptive sentencing range), and that Judge Collins had not invoked her authority under AS 12.55.155(a)(2) to reduce Miller's sentence below the presumptive range.

But in fact, Judge Collins did invoke her authority under AS 12.55.-155(a)(2), and she sentenced Miller to serve 3 years in prison — very close to the minimum sentence allowed under that statute, 2½ years to serve.

Thus, Miller's argument that Judge Collins gave insufficient weight to mitigator (d)(9) reduces to the argument that Judge Collins, instead of sentencing Miller to serve 3 years in prison, should have imposed a sentence closer to 2½ years.

The question on appeal is whether Judge Collins was clearly mistaken when she decided to impose a few months more than the 2½-year minimum sentence. On this record, we conclude that Miller has failed to show that Judge Collins's decision was clearly mistaken.

Conclusion

The sentencing decision of the superior court is AFFIRMED, except that we direct the superior court to amend the judgement to provide that Miller will spend 10 years on probation instead of 5 years.