Opinion
Court of Appeals No. A-11730 No. 6133
01-07-2015
WILLIAM U. OVIOK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael A. Stepovich, Stepovich & Vacura Law Office, Fairbanks, for the Appellant. Brian J. Sullivan, Assistant District Attorney, Barrow, and Michael C. Geraghty, 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 No. 2BA-12-152 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Barrow, Michael I. Jeffery, Judge. Appearances: Michael A. Stepovich, Stepovich & Vacura Law Office, Fairbanks, for the Appellant. Brian J. Sullivan, Assistant District Attorney, Barrow, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, and Kossler, Judges. Judge ALLARD.
William U. Oviok pleaded guilty to third-degree sexual assault. In exchange for his plea, the State dismissed several other charges, including first-degree sexual assault, second-degree sexual assault, and burglary. Oviok was later sentenced to a term in the middle of the applicable presumptive range.
Oviok's case has a complicated procedural history that is not detailed here because it is not directly relevant to the arguments he raises on appeal.
At sentencing, Oviok's adoptive mother testified that Oviok had been diagnosed with "some [fetal alcohol syndrome] symptoms" and had received some special education services. Oviok argues that the sentencing court committed plain error when it failed to mitigate his sentence below the applicable presumptive range based on this testimony.
Oviok concedes that his attorney never asked the court to find a statutory or non-statutory mitigating factor or to impose a sentence below the presumptive range. Oviok also concedes that the statutory mitigating factor generally available to defendants diagnosed with a fetal alcohol spectrum disorder, AS 12.55.155(d)(20), excludes defendants convicted of a crime against a person (which includes all sexual crimes).
Former AS 12.55.155(d)(20) provided, in relevant part,
At the time Oviok was sentenced, the statute in effect was former AS 12.55.155(d)(20) (2012). In 2014, the Alaska Legislature amended AS 12.55.155(d)(20) to add subsection (d)(20)(B), creating a statutory mitigator for defendants diagnosed with combat-related post-traumatic stress disorder. See ch. 83, § 25, SLA 2014. The portion of the statute relevant to fetal alcohol spectrum disorder remained unchanged, except that it was renumbered (d)(20)(A). Id.
[E]xcept in the case of an offense defined under AS 11.41 or AS 11.46.400, the defendant committed the offense while suffering from a condition diagnosed as a fetal alcohol spectrum disorder, the fetal alcohol spectrum disorder substantially impaired the defendant's judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life, and the fetal alcohol spectrum disorder, though insufficient to constitute a complete defense,
significantly affected the defendant's conduct; in this subparagraph, "fetal alcohol spectrum disorder" means a condition of impaired brain function in the range of permanent birth defects caused by maternal consumption of alcohol during pregnancy[.]
Oviok argues that the statutory exclusion in AS 12.55.155(d)(20) — making the mitigating factor unavailable to a defendant convicted of a crime against a person — violates due process, equal protection, and the right to individualized sentencing, and is therefore unconstitutional. Oviok also argues that applying the statutory exclusion in his particular case would violate the prohibition against ex post facto laws, because AS 12.55.155(d)(20) was enacted after he committed his offense.
Oviok's offense was committed in 2011. Former AS 12.55.155(d)(20) was enacted in 2012. See ch. 54, § 1, SLA 2012.
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We conclude that we do not need to reach any of these constitutional claims because the evidence presented at sentencing that Oviok suffered from fetal alcohol spectrum disorder was plainly insufficient to establish the AS 12.55.155(d)(20) statutory mitigating factor, even if the statutory exclusion did not apply to Oviok's case. We further conclude that the superior court did not commit plain error in failing to sua sponte sentence Oviok below the presumptive range based on this evidence, particularly given that Oviok's attorney did not request a sentence below the presumptive range.
We AFFIRM the superior court's judgment.