Opinion
Court of Appeals No. A-12625 Court of Appeals No. A-12626 No. 6729
11-21-2018
BURT COLEGROVE IV, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Katrina R. Larsen, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Stephen R. West, District Attorney, Ketchikan, 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 Nos. 1PW-16-21 CR & 1PW-16-23 CR
MEMORANDUM OPINION
Appeal from the District Court, First Judicial District, Prince of Wales, Kay M. Clark, Magistrate Judge. Appearances: Katrina R. Larsen, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Stephen R. West, District Attorney, Ketchikan, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Burt Colegrove IV pleaded no contest to two counts of violating his conditions of bail release after he failed to appear for two sobriety checks and failed a breath test. At his sentencing in May 2016, Colegrove's defense attorney asked the judge to consider the fact that the legislature had recently passed bills reducing the maximum penalty for this offense from a class A misdemeanor punishable by up to 1 year of imprisonment to a violation punishable only by a fine of up to $1000. Without addressing this pending legislation, the judge sentenced Colegrove to 7 months' imprisonment on each count, to run concurrently. The legislation reducing the penalty for Colegrove's offenses took effect two months later, in July 2016, after the governor signed it.
Compare former AS 11.56.757(b)(1) (pre-2016 version) and former 12.55.135(a) (pre-2016 version) with former AS 11.56. 757(b) (pre-2017 version).
See SLA 2016, ch. 36 §§ 30, 188.
In this sentence appeal, Colegrove asks us to remand his case to the district court and to direct the court to reconsider his sentence in light of the changed law. For the reasons explained here, we agree with Colegrove that a remand is required in this case.
Why we remand for reconsideration of Colegrove's sentence
Colegrove argues that the sentencing judge should have considered the impending legislative reduction of his offense to a minor offense subject to a fine only, and that the judge should have imposed "a significantly lower" sentence.
Colegrove's argument that the judge should have considered the impending change of law is supported by Alaska case law. For example, after the legislature rewrote Alaska's criminal code in 1978, the supreme court in Whittlesey v. State held that a judge sentencing a defendant whose crime occurred before the effective date of the new criminal code should consider the prospective change of law in fashioning a sentence:
Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).
The comprehensive and explicit standards of the new criminal code are the most recent expressions of legislative policy in the highly subjective realm of sentencing. They are the result of long and careful deliberation by that body. We agree with Whittlesey that the sentencing provisions of the new criminal code are useful and relevant in the determination of an appropriate sentence under the present circumstances[.]
Id. at 1068.
We addressed a similar issue in Maeckle v. State. Maeckle was convicted of guiding without a license, a felony, and was sentenced on that charge to a term of 2 years with 1 year suspended. Several months after Maeckle's sentencing, the legislature amended the guiding statute to reduce a first offense of guiding without a license to a misdemeanor. We directed the trial court to reconsider Maeckle's sentence in the interest of justice:
Maeckle v. State, 792 P.2d 686 (Alaska App. 1990).
Id. at 688.
Id. at 690.
The statutory revision is ... extremely relevant as the legislature's most recent assessment of the seriousness of the misconduct involved in this case. The history of the penalty provision strongly supports the conclusion that the legislature thought better of its decision to punish guiding without a license as a felony in all cases and concluded that first offenders should only be subjected to misdemeanor penalties.
Under the circumstances, we conclude that the interest of justice requires [the defendant's] case to be remanded to the
superior court for reconsideration of the sentence in light of the amendments adopted following his initial sentencing hearing. On remand, although the sentencing court will not be strictly bound by the amended sentencing provisions, it should give due regard to them in redetermining an appropriate overall sentence.
Id. at 691.
At the sentencing hearing in this case, Colegrove raised the issue of the pending legislative change, but the judge did not respond to this sentencing argument. For the reasons that we expressed in Maeckle, the pending legislation was relevant to Colegrove's sentence. Because the issue was directly raised to the trial court, the court was required to address the pending legislation and to consider this legislative intent in its sentencing analysis.
See id.
See, e.g., Bolhouse v. State, 687 P.2d 1166, 1174 (Alaska App. 1984) (holding that defendant should normally not be sentenced in excess of maximum sentence imposed in pending legislation); Qualle v. State, 652 P.2d 481, 485 (Alaska App. 1982) (finding that the sentences authorized by the new criminal code are a factor which the trial court should have considered); Wright v. State, 651 P.2d 846, 849 (Alaska App. 1982) (remanding case for resentencing of marijuana crime in light of changed law); Sundberg v. State, 636 P.2d 619, 622 (Alaska App. 1981) (vacating the sentence and remanding for resentencing because the trial court did not consider the recently revised code).
We note, however, that in late 2017, the legislature amended AS 11.56.757 again. Under this amended statute, violating a condition of release is again a crime, but it is now a class B misdemeanor carrying a penalty of no more than five days' imprisonment.
4th Sp. Sess. SLA 2017, ch. 1, § 20.
AS 11.56.757(b); AS 12.55.135(b)(3). --------
Accordingly, we direct the court to reconsider Colegrove's sentence in light of the current classification of his offense as a class B misdemeanor, with a maximum penalty of five days' imprisonment. However, we express no opinion as to whether Colegrove's sentence should actually be changed.
Conclusion
We REMAND this case to the district court for further sentencing proceedings consistent with this opinion.