Opinion
Court of Appeals No. A-9917.
March 26, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-06-2142 CR.
Justin Racette, Assistant Public Defender, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant. Elizabeth Crail, Assistant District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Darrell D. Edwards was convicted of misconduct involving a controlled substance in the fourth degree, a class C felony, driving with a suspended license, a class A misdemeanor, and refusal to submit to a breath test, a class A misdemeanor. Superior Court Judge Mark I. Wood imposed a sentence of 3 years of imprisonment for the controlled substance conviction and two consecutive 1-year sentences for the misdemeanor convictions. Therefore, Judge Wood imposed a composite sentence of 5 years of imprisonment. Edwards appeals, arguing that the sentence is excessive. We affirm.
AS 11.71.040(a)(3)(A), (d).
AS 28.15.291(a)(1).
AS 28.35.032(a), (f).
Facts and proceedings
On June 11, 2006, a Fairbanks police officer saw a car that had been reported as stolen. The officer stopped the car, which was driven by Edwards. As a result of the stop, the State ultimately charged Edwards with possession of 0.25 grams of cocaine, driving while under the influence, driving with a suspended driver's license, and refusal to take a breath test. The State ultimately dismissed the driving while under the influence charge. A jury convicted Edwards on the possession of cocaine charge. Edwards entered no contest pleas to driving with a suspended license and refusal to submit to a breath test.
Edwards has an extensive record of prior convictions. In addition to three prior felony convictions, Edwards has been convicted of thirty-two prior misdemeanors. But because Edwards was unconditionally released on these felonies more than ten years before he committed the offenses in this case, he was a first felony offender for purposes of presumptive sentencing. As a first felony offender convicted of a class C felony, Edwards was subject to a presumptive range of 0 to 2 years of imprisonment.
AS 12.55.145(a)(1)(A).
AS 12.55.125(e)(1).
Judge Wood found two aggravating factors: that Edwards had three or more prior felony convictions, and that Edwards had five or more class A misdemeanor convictions. Judge Wood found one mitigating factor: that Edwards possessed a small quantity of the controlled substance. Judge Wood rejected Edwards's proposed mitigating factor that his offense was among the least serious conduct included in the definition of the offense.
AS 12.55.155(c)(15), (31).
AS 12.55.155(d)(13).
AS 12.55.155(d)(9).
In sentencing Edwards, Judge Wood emphasized Edwards's extensive prior criminal record. He found that, given Edwards's prior criminal history, Edwards was a dangerous offender who was likely to repeat his criminal behavior. He found that Edwards was not a drug dealer and that his drug possession, by itself, was not particularly serious. Judge Wood stated that, except for the mitigating factor that Edwards possessed only a small quantity of cocaine, he would have imposed the maximum 5-year sentence on the felony conviction based upon Edwards's extensive prior criminal record, Edwards's poor prospects for rehabilitation, and the need to protect the public. Judge Wood concluded that Edwards's prior record and poor prospects for rehabilitation justified imposing the maximum sentences on the misdemeanor convictions.
In arguing that his sentence is excessive, Edwards attacks each individual sentence. But "[w]hen this court reviews a composite sentence imposed for two or more criminal convictions, we assess whether the combined sentence is clearly mistaken, given the whole of the defendant's conduct and history." Given Edwards's extensive and continuous criminal record, we conclude that Judge Wood was not clearly mistaken in sentencing Edwards to 5 years of imprisonment. We conclude that Judge Wood could properly find, based upon Edwards's extensive criminal record, that it was necessary to incarcerate Edwards to protect the public.
Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000) (citations omitted).
Edwards argues that Judge Wood erred in rejecting his proposed mitigating factor that his offense was among the least serious conduct included in the offense. But Edwards's argument in support of the mitigating factor was basically that he possessed only a small quantity of cocaine. Judge Wood fully considered this argument when he found the mitigating factor that Edwards possessed only a small quantity of cocaine, and further found that Edwards was not dealing drugs. Given these findings, it is clear that Judge Wood fully considered Edwards's argument and found in Edwards's favor in imposing sentence. We conclude that the sentence is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 814 (Alaska 1974).
The sentence is AFFIRMED.
I write separately to address two legal issues presented in this case.
Mitigator (d)(9). The sentencing judge in this case, Judge Wood, found that Edwards had proved one mitigating factor: AS 12.55.155(d)(13) — that Edwards's offense involved only a small quantity of a controlled substance. But Edwards argues on appeal that Judge Wood should have ruled in his favor on another proposed mitigating factor: AS 12.55.155(d)(9) — that Edwards's conduct was among the least serious within the definition of the offense.
As Judge Coats's lead opinion points out, Judge Wood did consider the fact that Edwards's offense appeared to be relatively minor within the statutory definition of the crime. Judge Wood did not engage in this analysis under the rubric of mitigator (d)(9). Instead, the judge engaged in this analysis when he weighed mitigator (d)(13).
Thus, Edwards's case does not involve a situation where a sentencing judge failed to identify or consider a defense argument as to why the offense was mitigated. Rather, Edwards's claim is a more technical one: that Judge Wood committed error by failing to find that Edwards had proved a particular mitigating factor by clear and convincing evidence. Under the facts presented here, if there was any error with respect to mitigator (d)(9), that error was harmless.
Edwards's argument regarding mitigator (d)(9) was simply a re-framing of his argument regarding mitigator (d)(13). Both arguments rested on the same premise: that Edwards's offense involved an atypically small amount of the controlled substance. The record shows that Judge Wood acknowledged and actively considered Edwards's contention that, because of the small quantity involved, Edwards's offense was relatively minor when compared to the range of conduct encompassed by the definition of the crime.
Moreover, the presence or absence of this additional mitigator had no effect on Judge Wood's sentencing authority. Edwards was a first felony offender convicted of a class C felony. The prescribed presumptive sentencing range for Edwards's offense was 0 to 2 years' imprisonment. See AS 12.55.125(e)(1). Thus, even in the absence of any mitigating factors, Judge Wood could have given Edwards no time to serve.
For these reasons, I agree with my colleagues that any potential error regarding proposed mitigator (d)(9) was harmless under the facts presented here.
Aggravator (c)(15). Judge Wood found that the State had proved aggravating factor AS 12.55.155(c)(15) — that Edwards had three or more prior felony convictions. I believe that the judge may have committed error when he found aggravator (c)(15).
In Mancini v. State, 841 P.2d 184, 188-89 (Alaska App. 1992), this Court held that the definition of "prior felony conviction" codified in AS 12.55.145(a)(2) governs not only the determination of a defendant's status as a first, second, or third felony offender for presumptive sentencing purposes, but also governs the determination of aggravator (c)(15) — i.e., whether the defendant has three or more prior felony convictions.
The defendant in Mancini had several out-of-state felony convictions. Two of these out-of-state felonies constituted "prior felonies" under the definition codified in AS 12.55.145(a)(2), because these out-of-state crimes had elements that were similar to the elements of felonies under Alaska law. Mancini conceded that, because of these two prior felony convictions, he was subject to presumptive sentencing as a "third felony offender" for his current felony offense. However, Mancini contended that his remaining out-of-state felonies did not qualify as "prior felony convictions" under the definition codified in AS 12.55.145(a)(2).
Mancini, 841 P.2d at 188.
At Mancini's sentencing hearing, the State did not dispute Mancini's contention that only two of his out-of-state convictions qualified as prior felony convictions under AS 12.55.145(a)(2). The State argued, however, that even though Mancini's third out-of-state conviction could not be counted toward determining his status as a first, second, or third felony offender, this third conviction still could properly be counted for purposes of deciding aggravator (c)(15) — i.e., for purposes of deciding whether Mancini's sentence should be increased because he had more than two prior felony convictions. In other words, the State argued that the definition of "prior felony conviction" set forth in AS 12.55.145(a)(2) did not govern the question of whether Mancini had three or more prior felony convictions for purposes of aggravating factor (c)(15).
Id.
Id.
This Court rejected the State's argument and held that the definition of "prior felony conviction" in AS 12.55.145(a)(2) governed the question of which felonies should be counted when determining aggravator (c)(15). We noted that this conclusion "seem[ed] particularly appropriate . . ., given the purpose for which factor (c)(15) was adopted". We then quoted the legislative commentary to AS 12.55.155(c)(15):
Id. at 189.
Id.
[Newly-enacted AS 12.55.155(c)(15)] treats the presence of three or more prior felony convictions as an aggravating factor. This amendment [to Alaska's existing sentencing law] is required since[, under the law,] two or more prior felony convictions will place the defendant in the most serious category ["third felony offender"] for purposes of presumptive sentencing. However, no provision specifically allows the judge to consider the fact that the defendant may have, for example, six prior felonies as opposed to only two. This amendment allows the judge to consider prior felonies beyond those necessary to place the defendant in the most serious category of presumptive sentencing as an aggravating factor.
Mancini, 841 P.2d at 189, quoting the Commentary and Sectional Analysis for the 1980 Amendments to Alaska's Revised Criminal Code, 1980 Senate Journal Supp. N o. 44 (May 29), pp. 24-25 (which is printed following 1980 Senate Journal 1436).
As we noted in Mancini, 841 P.2d at 189, this legislative commentary shows that aggravating factor (c)(15) is "integrally related" to the provisions that define a defendant's status as a first, second, or third felony offender for presumptive sentencing purposes. Because "third felony offender" is the highest category of felony offender under Alaska law — because our sentencing law has no separate category for "fourth felony offenders", "fifth felony offenders", etc. — the legislature wanted sentencing judges to have the authority to impose more severe sentences on offenders who were nominally "third" felony offenders but who actually had more than two prior felony convictions.
But the legislature's rationale for enacting aggravator (c)(15) is seemingly premised on the concept that there will be one uniform method for calculating the number of a defendant's prior felony convictions. Accordingly, in Mancini we held that if a defendant's out-of-state felony conviction does not qualify as a prior felony conviction under AS 12.55.145(a)(2), then it does not qualify as a prior felony conviction for purposes of aggravator (c)(15).
See also Kuvaas v. State, 696 P.2d 684, 685 (Alaska App. 1985), where this Court held that the definition of "prior felony conviction" in AS 12.55.145(a)(2) governs the assessment of aggravating factor AS 12.55.155(c)(20) — the factor that applies if the defendant's current felony was committed while the defendant was "on furlough . . . or on parole or probation for another felony charge or conviction".
Edwards's case involves a different subsection of AS 12.55.145(a) — subsection (1), which defines the prior convictions that do not count because of the passage of time, as opposed to subsection (2), which defines the prior convictions that do not count because of differences in other states' law. But in all other respects, Edwards's case is analogous to the situations presented in Mancini and Kuvaas.
Edwards has three prior felony convictions, but these convictions do not qualify as "prior felony convictions" under AS 12.55.145(a)(1) — because none of these convictions were for unclassified or class A felonies, and because more than ten years had elapsed since Edwards was unconditionally discharged from supervision for these crimes.
Because Edwards's felony convictions did not count as "prior felony convictions" under AS 12.55.145(a)(1), Judge Wood and the State acknowledged that Edwards was a "first felony offender" for presumptive sentencing purposes. Nevertheless, based on these same convictions, Judge Wood found aggravator (c)(15) — i.e., that Edwards had three or more prior felony convictions.
For the reasons I have just explained, I believe there is good reason to think that this was error. However, Edwards does not raise this issue in his brief, nor does he attack Judge Wood's finding of aggravator (c)(15) in any other way. In other words, this Court has not received adversarial briefing on this issue. And it is at least conceivable that the rule we adopted in Mancini and Kuvaas, both of which involved subsection (a)(2) of the statute, should not apply to cases involving subsection (a)(1) ( i.e., cases where a defendant's prior felony convictions do not count because of the passage of time).
Accordingly, although I wish to flag this issue, I conclude that it would be inappropriate for this Court to decide the issue in Edwards's case.