Opinion
Court of Appeals No. A-9346.
May 7, 2008.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Mark I. Wood, Judge, Trial Court No. 4BE-97-167 Cr.
Glenda Kerry and Linda K. Wilson, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Evan E. Ramsey went on a shooting rampage at the high school in Bethel. He was convicted of two counts of first-degree murder, one count of second-degree assault, and fifteen counts of third-degree assault (recklessly placing another person in fear of imminent serious physical injury by means of a dangerous instrument).
The superior court sentenced Ramsey to consecutive 99-year terms of imprisonment for the two counts of first-degree murder. (Imprisonment for 99 years is the maximum penalty for this offense.) In addition, Ramsey received 4 years to serve for the single count of second-degree assault, and 5 years to serve for each of the fifteen counts of third-degree assault, but the superior court imposed all of these assault sentences concurrently with Ramsey's murder sentences. Thus, Ramsey received a composite sentence of 198 years' imprisonment. See Ramsey v. State, 56 P.3d 675 (Alaska App. 2002), and Ramsey v. State, Alaska App. Memorandum Opinion No. 4988 (June 15, 2005), 2005 WL 1415308.
See AS 12.55.125(a).
In February 2005, Ramsey filed a motion under Alaska Criminal Rule 35(a), asserting that his sentence was illegal in various respects. Ramsey's arguments regarding the illegality of his sentence were all based on the asserted infringement of his Sixth Amendment right to jury trial as interpreted in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The superior court denied Ramsey's motion, and Ramsey then appealed.
In our prior decision in this case, Ramsey v. State, Alaska App. Memorandum Opinion No. 5260 (August 29, 2007), 2007 WL 2460034, rehearing denied, 2007 WL 2668752 (September 11, 2007), we rejected all of Ramsey's Blakely claims except one. That one remaining claim concerned the sentences that Ramsey received for the fifteen counts of third-degree assault.
Third-degree assault is a class C felony with a maximum sentence of 5 years' imprisonment. Ramsey was a first felony offender. At the time of Ramsey's offenses, sentencing for first felony offenders convicted of a class C felony was governed by former AS 12.55.125(k). Under AS 12.55.125(k)(2), Ramsey could receive no more than 2 years to serve (although he could receive additional suspended time) unless the State proved one or more of the aggravating factors listed in AS 12.55.155(c), or unless the State proved extraordinary circumstances as defined in AS 12.55.165.
AS 11.41.220(d); AS 12.55.125(e).
It is true that Ramsey's conduct was heinous: he took a loaded shotgun into a high school for the purpose of killing several people and, by his conduct, he terrorized many other people. But Ramsey was separately charged with, and convicted of, fifteen counts of third-degree assault for placing various people in fear of imminent serious physical injury by means of his shotgun ( i.e., people other than the victims he killed and injured). The offense of third-degree assault is often committed by pointing a firearm at other people, and Ramsey's conduct in this regard appeared to typify the offense of third-degree assault.
We concluded that the record in Ramsey's case did not clearly establish any aggravating factors that applied specifically to the third-degree assault counts, and we noted that the sentencing judge made no express findings regarding any aggravators that might apply to the third-deg ree assault counts. Ramsey, Memorandum O pinion N o. 5260 at pp. 5-6, 2007 WL 2460034 at *3.
The State argued in the alternative that even if Ramsey's 5-year sentences for third-degree assault violated Blakely, this issue was moot because Ramsey had already served more than 5 years in prison. But as we noted in our prior decision, the validity of this mootness argument hinged on certain assumptions about the Department of Corrections' time-accounting practices, as well as the relationship between discretionary and mandatory parole when concurrent sentences are imposed. These questions were not discussed in the State's brief. And, without knowing the answers to these questions, we could not say for certain whether the State was right in asserting that there was absolutely no possibility that Ramsey would ever face additional punishment for his third-degree assault convictions, over and above his murder sentences.
For these reasons, we remanded Ramsey's case to the superior court to reconsider Ramsey's third-degree assault sentences in light of Ramsey's right to jury trial under Blakely. We gave the State three choices on remand. The State could opt to allow the superior court to reduce Ramsey's terms of imprisonment for third-degree assault to a level that did not require proof of aggravators ( i.e., no more than 2 years to serve). Alternatively, the State could seek permission to hold a jury trial on one or more aggravating factors that would authorize Ramsey's current 5-year sentences for third-degree assault. And, as a third option, the State could seek to establish a more sufficient factual predicate for its argument that this Blakely issue was moot.
On remand, the State chose the third option — attempting to shore up its argument that the Blakely issue was moot because Ramsey had already completed his service of all of the imprisonment imposed for the fifteen counts of third-degree assault.
The State filed two briefs in the superior court on this subject. Unfortunately, the State took two different positions in these two briefs.
In the State's first brief, the State asserted that "Ramsey ha[d] [completely] served the [third-degree] assault sentences", and that "[even] if [Ramsey's] murder sentences were [to be] vacated, [the Department of Corrections] would consider the assault sentences fully served."
Ramsey's attorney responded by asserting that the State's position was not correct — that it ignored good time credit and mandatory parole release under AS 33.20. Ramsey's attorney argued that, because of good time credit, the Department of Corrections did not consider Ramsey to have fully served his concurrent 5-year sentences for third-degree assault — that, in fact, the Department of Corrections considered Ramsey to have served only the first two-thirds of these sentences, and that if and when Ramsey was released on parole from his murder sentences, he would also be on parole for the 1a years that remained from his third-degree assault sentences.
In response to Ramsey's argument, the State filed a reply brief. In this reply brief, the State asserted that "Ramsey [had] fail[ed] to perceive the [S]tate's point related to the mootness issue". But rather than demonstrate how Ramsey had failed to understand the State's initial mootness argument, the State instead changed its argument.
The State essentially conceded that Ramsey's view of the Department's time-accounting practices was correct, and the State backed away from its former assertion that Ramsey had completely served his third-degree assault sentences. Instead, the State agreed with the defense attorney that, if Ramsey were ever released on parole, his parole would stem from both his murder sentences and his assault sentences.
Having abandoned its initial position as to why Ramsey's challenge to his third-degree assault sentences was moot, the State then argued that Ramsey's challenge was moot for a different reason. The State asserted that Ramsey's parole stemming from the third-degree assault sentences would be served concurrently with his much lengthier parole stemming from the murder sentences. Given the fact that Ramsey's parole from the third-degree assault sentences would be "completely subsumed" in his parole from the murder sentences, the State argued that there was no possibility that Ramsey's illegal 5-year sentences for third-degree assault would have any effect on the amount of time he served on parole or (if parole was revoked) the amount of time he served in prison — unless Ramsey's murder sentences were to be vacated. The State apparently believed that this possibility was too remote to be worth considering further.
Thus, the positions taken by the State in its opening brief and its reply brief are inconsistent. In its opening brief, the State asserted that Ramsey had already completely served his 5-year third-degree assault sentences — so that even if Ramsey's murder sentences were to be vacated, there was absolutely no chance that Ramsey would face any further incarceration or parole for the illegally severe third-degree assault sentences. But in its reply brief, the State essentially conceded that Ramsey could face additional liability if his murder sentences were vacated.
The superior court ruled that the State's initial position was correct. The superior court declared that "Ramsey ha[d] completely served his concurrent sentences on the [third-degree assault] charges", and that there were no longer any "collateral consequences to him, parole or otherwise, stemming from the court's previous [illegal] judgment." But the superior court failed to acknowledge the fact that, in the State's reply brief, the State disavowed this position and conceded that Ramsey had not completely served his third-degree assault sentences.
Now that this case has returned to us following the superior court's ruling, the State has made no effort to support the superior court's view of the law or the superior court's view of the Department of Corrections' time accounting practices — views that the State disowned in its reply brief. Rather, the State has elected to submit this case on the briefs previously filed in the superior court.
We find ourselves in essentially the same position as when we remanded Ramsey's case to the superior court. The factual and legal bases for the State's mootness argument remain unclear — because the State has taken two different and inconsistent positions on this issue. Moreover, unlike the superior court, we are unable to conclude that the State's initial position is obviously correct and its later position obviously wrong.
As the proponent of the mootness argument, it is the State's burden to convince us that Ramsey's Blakely challenge to his third-degree assault sentences is clearly moot. The State has failed to meet this burden. Moreover, the State did not avail itself of the opportunity to try to establish aggravating factors during the remand proceedings (in case the State's mootness argument proved unconvincing).
For these reasons, we now rule that Ramsey's sentences for third-degree assault are illegal under Blakely, and that the superior court must amend these sentences so that they include no more than 2 years to serve, as required by former AS 12.55.125(k)(2).
In this limited respect, the judgement of the superior court is REVERSED.