Opinion
A-12328 0347
10-04-2023
DWIGHT SAMUEL O'CONNOR, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District No. 3AN-11-08340 CR, Anchorage, Kevin M. Saxby, Judge, and the Statewide Three-Judge Sentencing Panel, Trevor Stephens, Eric Aarseth, and Jennifer Wells, Judges.
Michael L. Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Wollenberg, Judge, and Mannheimer, Senior Judge.[*]
SUMMARY DISPOSITION
Following a jury trial, Dwight Samuel O'Connor was convicted of one count of first-degree sexual assault. The superior court imposed a sentence of 25 years with 5 years suspended (20 years to serve) - the lowest permissible sentence within the applicable presumptive range. On appeal, we affirmed O'Connor's conviction, but we directed the superior court to reconsider O'Connor's request for referral of his case to the statewide three-judge sentencing panel based on the non-statutory mitigator of extraordinary potential for rehabilitation.
Former AS 11.41.410(a)(1) (2011).
AS 12.55.125(i)(1)(A)(ii) (setting the applicable presumptive range at 20 to 30 years); see also former AS 12.55.125(o)(1) (2011) (requiring imposition of a minimum 5-year period of suspended imprisonment).
O'Connor v. State, 444 P.3d 226, 235 (Alaska App. 2019).
On remand, the superior court found that O'Connor had established by clear and convincing evidence that he had extraordinary potential for rehabilitation. The court therefore referred O'Connor's case to the three-judge panel for consideration. At a subsequent hearing before the three-judge panel, O'Connor presented evidence in support of his proposed non-statutory mitigating factor.
AS 12.55.165.
Following the hearing, the panel found that, while it was "a very close question," O'Connor had established that he had unusually favorable prospects for rehabilitation. While the panel declined to reduce the term of imprisonment imposed by the superior court, the panel did find that it would be manifestly unjust if O'Connor were not made eligible for discretionary parole after serving half of his sentence (contingent upon his completion of sex offender treatment). The panel therefore amended O'Connor's parole eligibility accordingly.
On appeal, O'Connor argues that, once the three-judge panel found that he had extraordinary potential for rehabilitation, the panel was legally required to reduce his term of imprisonment. In particular, O'Connor points to the panel's statement that "it would be manifestly unjust if we didn't at least consider the non-statutory mitigating factor with respect to a sentence." (Emphasis added.) O'Connor notes that, in prior cases, we have construed the phrase "fail to consider" in this context as meaning that it would be "manifestly unjust to fail to adjust the presumptive term by some amount."O'Connor thus contends that the panel's finding regarding the mitigating factor was tantamount to a finding that his term of imprisonment should be reduced.
See Bossie v. State, 835 P.2d 1257, 1258-59 (Alaska App. 1992) (emphasis added); see also Garner v. State, 266 P.3d 1045, 1051 (Alaska App. 2011) (Mannheimer, J., with whom Bolger, J. joined, concurring) ("[W]hen AS 12.55.175(b) speaks of cases where manifest injustice would result from 'failure to consider' a non-statutory sentencing factor, the statute is really referring only to those cases where manifest injustice would result from failure to adjust the otherwise available sentencing range because of a non-statutory sentencing factor.").
But it is clear from the three-judge panel's ruling, and from the record as a whole, that the panel applied the correct legal framework and concluded that the proper adjustment of O'Connor's presumptive sentence was to make him eligible for discretionary parole after he served half of his term of imprisonment, rather than to reduce the term of imprisonment itself.
At the outset of the hearing, the panel acknowledged that if it found that the non-statutory mitigator was established by clear and convincing evidence, then the panel would be required to consider "whether it would be manifestly unjust, considering the Chaney sentencing criteria and the totality of the circumstances, to [fail to] make some adjustment, albeit small, to the sentence allowed by the presumptive sentencing law."And at the end of the hearing, even though the panel found that O'Connor had proved the non-statutory mitigator, the panel concluded that the totality of the circumstances did not call for a reduction of his term of imprisonment; rather, the circumstances required an expansion of his parole eligibility. Having reviewed the record, we see no error in the panel's legal analysis.
See Garner, 266 P.3d at 1047-48; Harapat v. State, 174 P.3d 249, 254 (Alaska App. 2007). The court repeated this analysis in its written order.
See Garner, 266 P.3d at 1051 (Mannheimer, J., with whom Bolger, J., joined, concurring) ("[W]henever the three-judge panel concludes that, even after taking the non-statutory sentencing factor into account, the defendant should still receive a sentence within the range of sentences that was already available to the individual sentencing judge, the panel's conclusion is equivalent to a finding that it would not be manifestly unjust to 'fail to consider' the non-statutory sentencing factor.").
The judgment of the three-judge sentencing panel is AFFIRMED.
[*] Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).