Opinion
Court of Appeals No. A-13176 No. 6947
05-26-2021
BRANDON MICHAEL NELSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Patrick D. Stocks, Assistant Public Advocate, Palmer, and James Stinson, Public Advocate, Office of Public Advocacy, Anchorage, for the Appellant. Mackenzie C. Olson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 2KB-16-00064 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Kotzebue, Romano DiBenedetto, Judge. Appearances: Patrick D. Stocks, Assistant Public Advocate, Palmer, and James Stinson, Public Advocate, Office of Public Advocacy, Anchorage, for the Appellant. Mackenzie C. Olson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge HARBISON.
In 2016, then-seventeen-year-old Brandon Michael Nelson, along with his brothers, eighteen-year-old Tony Jackson and nineteen-year-old Frank Jackson, went to the home of Joshua Sours III, planning to rob Sours to obtain money for alcohol. During the course of the robbery, Nelson fatally shot Sours. The three brothers then stole a snow machine and used it to dispose of evidence related to the robbery.
Pursuant to a plea agreement, Nelson pleaded guilty to first-degree robbery and manslaughter. The agreement left sentencing to the superior court's discretion but required that Nelson receive no more than 25 years of active imprisonment.
AS 11.41.500(a)(1) and AS 11.41.120(a)(1), respectively.
For their roles in Sours's death, Tony Jackson and Frank Jackson each pleaded guilty to first-degree robbery and first-degree vehicle theft, in exchange for identical composite sentences of 17 years with 8 years suspended (9 years to serve).
All three brothers proceeded to a joint sentencing hearing, at which the superior court imposed the agreed-upon sentences for Tony Jackson and Frank Jackson and sentenced Nelson to 40 years with 20 years suspended (20 years to serve). In all three cases, the superior court imposed a probation condition prohibiting contact between the brothers without prior permission from the court.
On appeal, Nelson argues that the sentencing court: (1) misapplied the community condemnation sentencing factor; (2) ignored Nelson's potential for rehabilitation; and (3) erroneously gave weight to an aggravating factor to which Nelson stipulated as part of his plea agreement, but which he now argues could not legally apply to his case. Nelson also challenges the probation condition prohibiting contact with his brothers as an infringement of his constitutional right to familial association.
For the reasons explained in this opinion, we remand Nelson's case for clarification of the court's comments on community condemnation and the disputed aggravating factor, as well as for the court to apply special scrutiny to the challenged probation condition. On remand, the court should also reconsider Nelson's potential for rehabilitation.
Why we remand this case for clarification of the court's remarks regarding community condemnation
In addressing the role of community condemnation in Nelson's sentence, the sentencing court appeared to endorse the view that a crime committed in a smaller community was inherently more serious — and by implication, worthy of greater punishment — than an identical crime committed in a more urban area. Specifically, the court stated:
I don't believe that a crime is the same no matter where it's committed. A robbery in Chicago means one thing, a robbery in Anchorage means something else; one in Fairbanks means something else, and one in a little community like [Kotzebue] does have a bigger impact because a crime against one person is felt more deeply by that community. . . . That's why when you do something in a community, you're going to be judged by that community's standards.
To the extent that the court considered the size of the community of Kotzebue alone as a factor which called for greater community condemnation, this was error. In enacting the statutory sentencing framework, the legislature sought the "elimination of unjustified disparity in sentences and the attainment of reasonable uniformity in sentences." These goals would be severely undercut by using the community condemnation factor to increase sentences for rural defendants over their more urban counterparts based solely on the fact that an offender committed an offense in his or her home community.
AS 12.55.005; see also Graham v. State, 440 P.3d 309, 322 (Alaska App. 2019) (discussing the proper application of the community condemnation sentencing factor).
Cf. Clemans v. State, 680 P.2d 1179, 1188 (Alaska App. 1984) (recognizing that "the life of one human being cannot be deemed inherently more worthy of protection than the life of another").
In Long v. State, we explained that there is a distinction between the imposition of disparate sentences based solely on the location in which a crime takes place, which is improper, and a sentencing court's consideration of the particular problems faced by a community:
We agree . . . that arbitrary regionalism is undesirable in sentencing. Nevertheless, Alaskan communities differ widely in character and in the extent to which various social problems affect them at any given time. Just as all crimes occur in a specific context, so all sentences are imposed in a specific context. In any given case, evaluation of the seriousness of an offense must realistically be based upon consideration of the impact that the offense had in the context of the community within which it occurred. Provided that undue emphasis is not given to this factor, there is nothing improper in a sentencing court's decision to take into account the particularly serious impact of a crime on a given community.
Long v. State, 772 P.2d 1099, 1103 n.1 (Alaska App. 1989).
In cases where we have upheld the trial court's consideration of the "context of the community" within which an offense occurred, we have done so on the basis of particular problems the community was experiencing, rather than merely the size of the community itself. For example, we have upheld an enhanced sentence for "a substantial dealer of cocaine" who committed his offense in an area of the state that was experiencing particularly severe issues with substance abuse, i.e., an area of the state where the defendant knew he could reap substantial profits and where the community would be especially vulnerable to his ongoing commercial sales.
Sims v. State, 1995 WL 17220783, at *1 (Alaska App. Apr. 12, 1995) (unpublished); see also Long, 772 P.2d at 1102-03 (rejecting an excessive sentence claim by a defendant convicted of a drug offense in Bethel, even though the sentence was significantly harsher than a sentence imposed on a similarly situated co-defendant in Anchorage; the Bethel court properly considered that the offense "occurred in an area of the state that is currently experiencing particularly severe effects from substance abuse"); Brown v. State, 1995 WL 17221266, at *3 (Alaska App. July 12, 1995) (unpublished) (finding no error in a sentencing court's observation that the defendant's theft of pain medications from the Craig community clinic had more serious consequences for the remote community, than a similar theft in an urban location where the drugs could have been more easily replaced).
In the present case, there was no evidence in the record that Kotzebue was experiencing particularly severe issues with either homicide or robbery at the time of Nelson's offenses. The record is similarly devoid of evidence that Nelson targeted his victim or the community of Kotzebue because of any particular vulnerability. Accordingly, the court's comments appear to reflect the kind of arbitrary regionalism we disapproved of in Long.
In fact, the prosecutor observed, "This is not an offense that occurs in Kotzebue frequently." And Nelson's attorney seemed to agree with this assessment, responding that "everybody should be happy that this doesn't happen [in Kotzebue, but] it isn't somehow worse because this happens in a rural community versus a more urban community."
For these reasons, we conclude that we must remand this case to the superior court for clarification of its comments and, if necessary, resentencing.
The sentencing court erred in giving weight to aggravating factor AS 12.55.155(c)(4)
The parties' plea agreement required Nelson to stipulate to three aggravating factors, including that he "employed a dangerous instrument in furtherance of the offense." On appeal, Nelson argues that superior court could not give any weight to the dangerous instrument aggravating factor because his use of a dangerous instrument had already triggered an enhanced presumptive range.
AS 12.55.155(c)(4).
Nelson was a first felony offender. At the time of Nelson's sentencing, a first felony offender who committed a class A felony, including first-degree robbery and manslaughter, would typically face a presumptive sentencing range of 3 to 6 years. However, by statute, Nelson's use of a dangerous instrument meant that he instead faced an enhanced presumptive range of 5 to 9 years. As Nelson correctly notes, if a circumstance — such as the use of a dangerous instrument — is used to increase the applicable presumptive range, then the sentencing court may not rely on that same circumstance to further aggravate the defendant's sentence. Thus, as a matter of law, and despite Nelson's stipulation, the court could not rely on the dangerous instrument aggravator to impose a sentence above the high end of the already enhanced presumptive range.
Former AS 12.55.125(c)(1) (2017).
Former AS 12.55.125(c)(2)(A) (2017).
AS 12.55.155(e); cf. Krasovich v. State, 731 P.2d 598, 602 (Alaska App. 1987) ("Since the use of dangerous instruments is characteristic of manslaughter . . . , it would be unrealistic to conclude that the use of [a dangerous instrument] is, in and of itself, a sufficient basis for increasing the presumptive term.").
The State concedes that, under these circumstances, the sentencing court was "statutorily prohibited from affording weight" to the dangerous instrument aggravating factor. We have independently reviewed the record, and we conclude that the State's concession is well-founded.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that an appellate court must independently assess whether a concession of error "is supported by the record on appeal and has legal foundation").
Ordinarily, if a sentencing court imposed an aggravated sentence on the basis of an improper aggravating factor, we would simply remand the case for resentencing. But here the aggravating factor was part of a plea agreement that Nelson negotiated with the State. While Nelson's stipulation did not relieve the superior court of its duty to ensure that there was a reasonable factual basis for the aggravating factor, this procedural posture does not necessarily mean that Nelson is entitled to a resentencing on more favorable terms.
See, e.g., Buckwalter v. State, 23 P.3d 81, 82 (Alaska App. 2001); Geisler v. State, 2005 WL 3883159, at *12 (Alaska App. Mar. 22, 2006) (unpublished).
See Ulak v. State, 238 P.3d 1254, 1257 (Alaska App. 2010).
See Malutin v. State, 198 P.3d 1177, 1185, 1187 (Alaska App. 2009) (concluding that a defendant was not entitled to rescission of his plea agreement, despite the trial court's erroneous acceptance of the defendant's stipulation to an inapplicable aggravating factor, where a second aggravating factor authorized the court to impose a sentence above the presumptive range and the trial court placed no weight on the improper aggravating factor).
As we have previously held, a defendant who wishes to challenge an already consummated plea agreement as unlawful "must seek rescission of the agreement — not selective enforcement of only those provisions favorable to the defendant." In other words, a defendant cannot "claim the benefit of the portions of the agreement that he likes while, at the same time, mounting an appellate attack on the portions that he does not like."
Woodbury v. State, 151 P.3d 528, 532 (Alaska App. 2007).
Grasser v. State, 119 P.3d 1016, 1018 (Alaska App. 2005).
Nelson's argument on appeal — that the trial court lacked statutory authority to find an aggravating factor to which he stipulated as part of a plea agreement — is a repudiation of the position that he took when he negotiated his plea agreement with the State. In such circumstances, his remedy is to seek rescission of the entire agreement, rather than piecemeal enforcement of all terms other than the sentence he received as a result of the challenged aggravating factor.
See Woodbury, 151 P.3d at 532.
Id.
Nelson's case is further complicated by the fact that the record does not show how much weight the sentencing court gave to the dangerous instrument aggravating factor. Because Nelson also stipulated to other aggravating factors as part of his plea agreement, it is possible that the court would have imposed the same sentence even without Nelson's stipulation to the dangerous instrument aggravating factor. If so, then Nelson's claim of error does not entitle him to relief. On the other hand, if the court increased Nelson's sentence based on the dangerous instrument aggravating factor, then Nelson should have an opportunity to litigate whether he is entitled to rescission of the plea agreement.
The trial court's sentencing authority did not depend on the dangerous instrument aggravating factor; Nelson's stipulation to the other aggravating factors authorized the court to impose any sentence up to the maximum sentence for Nelson's offenses, regardless of his use of a dangerous instrument. See AS 12.55.155(h); Cleveland v. State, 143 P.3d 977, 987 (Alaska App. 2006) (holding that a sentencing court has authority to impose a sentence up to the maximum punishment prescribed for the offense upon finding a single Blakely-exempt aggravating factor).
See Malutin v. State, 198 P.3d 1177, 1187 (Alaska App. 2009).
See Wooley v. State, 221 P.3d 12, 20 (Alaska App. 2009) (noting that rescission of a plea agreement returns the parties to their respective positions prior to the agreement, including reinstatement of any other criminal charges dismissed in exchange for the defendant's plea).
We conclude that we must remand Nelson's case for resolution of this issue. On remand, the court should first clarify whether it placed independent weight on the dangerous instrument aggravating factor when imposing Nelson's sentence. If the court gave the dangerous instrument aggravating factor no weight and would have imposed the same sentence even without this factor, then Nelson is not entitled to relief on this ground. If, however, the aggravating factor did affect the court's ultimate sentencing decision, then the court must allow the parties to litigate what remedy, if any, should apply in the context of Nelson's case.
On remand, the court should reconsider Nelson's potential for rehabilitation
As we have explained, Nelson was seventeen years old when he committed these offenses, and he was sentenced to 20 years of active imprisonment. On appeal, Nelson argues that the court "completely ignored Mr. Nelson's youth and strong potential for rehabilitation."
We disagree that the court "completely ignored" Nelson's youth. During the course of the sentencing hearing, the court repeatedly referenced Nelson's youth.
However, in doing so, the court commented that it was necessary to "balance" Nelson's youth against the fact that the victim who died was "by all accounts a youthful man himself." Certainly, the court was required to consider the circumstances and seriousness of Nelson's offense and the extent to which the offense harmed the victim or endangered the public safety. But the court was also required to consider Nelson's own likelihood of rehabilitation, particularly given the fact that he was seventeen when he committed these offenses.
AS 12.55.005.
In crafting individualized sentences for youthful offenders, trial courts must place particular emphasis on the offender's age and related characteristics, including their transient immaturity and potential for rehabilitation. Here, we cannot tell from the record whether the court ultimately gave any weight to Nelson's young age when it imposed his sentence, or whether it concluded, erroneously, that Nelson's own potential for rehabilitation was negated by the victim's youth. The court's comment suggests that it may have believed that a defendant's young age should not be considered when the victim is also youthful.
Riley v. State, 720 P.2d 951, 952-53 (Alaska App. 1986); see also Miller v. Alabama, 567 U.S. 460 (2012).
We accordingly conclude that, on remand, the trial court should reconsider Nelson's potential for rehabilitation, taking into account his young age and any attendant characteristics.
Cf. Miller, 567 U.S. at 471 (recognizing that children are constitutionally different from adults for purposes of sentencing because children have diminished culpability and greater prospects for reform; children have a lack of maturity and an underdeveloped sense of responsibility which can lead to recklessness and impulsivity; children are more vulnerable to negative influences and outside pressures than adults; a child's character is "less fixed" than an adult's; and it is more likely that, as time passes and neurological development occurs, a child's behaviors may be reformed).
Why we remand for application of special scrutiny to the probation condition prohibiting contact between Nelson and his brothers
Finally, Nelson argues that the probation condition restricting contact with his brothers violates his constitutional right to familial association. We addressed an identical probation condition in Tony Jackson's appeal and remanded the condition to the superior court after concluding that the court had failed to apply special scrutiny to the condition. The result is the same here.
Jackson v. State, 2020 WL 7238375, at *1 (Alaska App. Dec. 9, 2020) (unpublished) (citing Dawson v. State, 894 P.2d 672, 680 (Alaska App. 1995); Glasgow v. State, 355 P.3d 597, 600 (Alaska App. 2015)).
On remand, the court must apply special scrutiny to the condition to determine whether "case-specific circumstances demonstrating actual necessity" exist justifying any restriction on contact, and explain why readily apparent less restrictive alternatives, such as supervised or monitored contact, would not satisfy the goals of probation.
Id. (quoting Dawson, 894 P.2d at 680); see also Johnson v. State, 421 P.3d 134, 140 (Alaska App. 2018) (noting the constitutional implications of restricting contact between a father and son, who were convicted of manslaughter and second-degree murder, respectively, in the death of a burglary victim and concluding "their status as co-defendants (or felons) alone did not override the importance of their familial relationship"). --------
Conclusion
For the reasons explained in this opinion, we VACATE the probation condition prohibiting contact between Nelson and his brothers. We REMAND this case to the superior court to clarify its comments about community condemnation, the weight it gave to the dangerous instrument aggravator, and the relevance of Nelson's youthfulness when considering his potential for rehabilitation. If the court relied on an improper understanding of the community condemnation or potential for rehabilitation sentencing factors and aggravated Nelson's sentence based on this misunderstanding, then the court should resentence Nelson accordingly. Similarly, if the court aggravated Nelson's sentence based on the dangerous instrument aggravating factor, then the court should allow the parties an opportunity to litigate whether Nelson is entitled to rescission of his plea agreement or any other remedy. On remand, the court should also apply special scrutiny to the challenged probation condition. We retain jurisdiction.