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Reyes v. State (4/30/99) ap-1632
NOTICE: The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention
of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HENRY REYES, )
) Court of Appeals No. A-6353
Appellant, ) Trial Court No. 3AN-94-7029 Cr
v. ) O P I N I O N
STATE OF ALASKA, )
Appellee. ) [No. 1632 - April 30, 1999]
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Susan H. Carse, Bauer & Carse,
Anchorage, for Appellant. Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Henry Reyes engaged in acts of sexual penetration and
sexual contact with his stepdaughter over the course of several
years. This sexual abuse resulted in long-term psychological injury
to the stepdaughter. Since the disclosure of the sexual abuse, she
has been intermittently hospitalized in psychiatric institutions.
She is suicidal, she has repeatedly engaged in self-mutilation, and,
according to an evaluation performed at the Alaska Psychiatric
Institute in mid-June, 1996, her prognosis for recovery is
In Reyes v. State, Memorandum Opinion No. 3752 (Alaska
App.; January 28, 1998), we affirmed Reyes's three convictions for
sexual penetration of his stepdaughter (first-degree sexual abuse
of a minor [Fn. 1]), but we ruled that Reyes could not be separately
convicted for the acts of sexual contact because, under the State's
evidence, it appeared that these acts of sexual contact were simply
preparatory to the acts of sexual penetration. [Fn. 2]
Reyes originally received a composite sentence of
12 years, 9 months' imprisonment for his crimes. [Fn. 3] On appeal,
Reyes contended that this sentence was excessive. Because we
decided that Reyes's sexual contact convictions had to be merged
with his sexual penetration convictions, we did not decide Reyes's
sentence appeal at that time. Instead, we remanded Reyes's case to
the superior court for re-sentencing. [Fn. 4]
Reyes has now been re-sentenced. Superior Court Judge
Milton M. Souter sentenced Reyes to the same composite term, and
Reyes's case has returned to this court.
But at the re-sentencing, Judge Souter made two changes
to Reyes's sentence. First, Judge Souter added a new condition to
Reyes's probation: he ordered Reyes to pay restitution for his
victim's psychiatric care. Second, Judge Souter decided to clarify
an issue that was purportedly left "ambiguous" in the initial
judgement: the judge expressly declared that Reyes's entire prison
term was "presumptive". Judge Souter's apparent intention was to
clarify that Reyes's eligibility for release on discretionary parole
would be restricted throughout the entire 12-year, 9-month term.
Because of these two changes in Reyes's sentence, we are
now confronted with two new legal issues (in addition to the alleged
excessiveness of Reyes's composite sentence). Reyes argues that
each of these changes constitutes an illegal increase in his
sentence, a violation of the double jeopardy clauses of the federal
and state constitutions. [Fn. 5]
As explained more fully below, (1) we affirm Reyes's
composite sentence of 12 years, 9 months' imprisonment, (2) we
vacate the newly-added condition of probation, and (3) we conclude
that Judge Souter, even though he labeled the sentence
"presumptive", did not actually change Reyes's eligibility for
Reyes's composite sentence
In State v. Andrews [Fn. 6], this court established a
benchmark sentencing range of 10 and 15 years to serve for offenders
who have committed "aggravated" first-degree sexual abuse of a
minor. For this purpose, "aggravated" means that the defendant (1)
has abused multiple victims, or (2) has engaged in multiple assaults
on the same victim, or (3) has inflicted serious injury on one or
more victims. [Fn. 7]
Reyes sexually abused his stepdaughter repeatedly over a
number of years. While Reyes did not inflict serious physical
injury on her, he inflicted severe psychological injury. This
psychological injury has proved both long-term and debilitating.
It has rendered the stepdaughter incapable of leading a normal life.
Given the extent of Reyes's crimes and the extent of the
injury he inflicted on his victim, we conclude that Reyes's
composite term of 12 years, 9 months' imprisonment is not clearly
mistaken. [Fn. 8] We therefore affirm this composite sentence.
The new condition of probation
As noted above, Judge Souter added a new condition to
Reyes's probation: he ordered Reyes to pay restitution in the
amount of $47,478.84 to Reyes's former wife (on a payment schedule
to be set by Reyes's probation officer). This money is to repay the
costs of the victim's psychiatric care.
(At the time of Reyes's initial sentencing, this care was
being funded by government assistance programs, and Judge Souter did
not order Reyes to reimburse the government for this expense. But
by the time of Reyes's re-sentencing, the government assistance had
stopped and the burden of paying for this care now fell to Reyes's
One principle of double jeopardy law is that "once a
sentence has been meaningfully imposed, it may not, at a later time,
be increased." [Fn. 9] Under the Alaska Constitution, this rule
applies to re-sentencings that occur when a defendant, having
successfully challenged their conviction, is again convicted
following a re-trial or a change of plea. In Shagloak v. State [Fn.
10], our supreme court held that, under such circumstances, the
double jeopardy clause of the Alaska Constitution forbids the
sentencing court from imposing a new sentence more severe than the
one the defendant originally received. [Fn. 11]
Reyes's situation is analogous: he faced re-sentencing
because his initial sentence was vacated (after we held that his
convictions for sexual contact had to merge with his convictions for
sexual penetration). The double jeopardy clause forbade Judge
Souter from imposing a more severe sentence than the one Reyes had
originally received. The question, then, is whether Judge Souter
violated this rule of law when he augmented Reyes's conditions of
probation by adding the challenged restitution.
Reyes contends that the addition of this new condition of
probation constitutes an illegal increase in his sentence. He
relies primarily on Kelly v. State [Fn. 12].
In Kelly, the sentencing court originally ordered the
defendant to pay restitution as a condition of probation. However,
the court later revoked the defendant's probation and sentenced her
to serve all of the previously suspended jail time thus ending
her probation. [Fn. 13] After Kelly had served her sentence, the
court tried to enforce the restitution order. We held that, because
the restitution had been imposed as a condition of probation, and
because Kelly's probation had ended, the restitution order could no
longer be enforced as a condition of probation. [Fn. 14] We further
held that, to the extent the sentencing court might have tried to
impose restitution as an independent component of Kelly's sentence
under AS 12.55.015(a)(5) and AS 12.55.045(a), the addition of this
restitution component would constitute an illegal increase in the
sentence. [Fn. 15]
The State responds that Kelly was wrongly decided and
should be overruled. The State relies on Monson v. Carver [Fn. 16],
which purports to hold that restitution is not "punishment" for
double jeopardy purposes. However, Monson's discussion of this
issue is obiter dictum. The defendant in Monson had been sentenced
to an indeterminate prison term for murder; several years later, he
was offered parole on the condition that he agree to make
restitution. [Fn. 17] As the Utah court pointed out, the defendant
was not entitled to parole release, and he was free to reject parole
when it was offered. Thus, the facts of Monson did not actually
raise a double jeopardy issue. [Fn. 18]
The State also relies on United States v. Newman [Fn. 19],
which rejected an ex post facto challenge to a statute requiring
sentencing courts to order defendants to pay restitution for their
crimes. The Newman court held that restitution is not "punishment"
for ex post facto purposes, and thus the statute could be applied
to defendants whose offenses pre-dated the enactment of the statute.
If we assume that "punishment" for ex post facto purposes
is the same as "punishment" for double jeopardy purposes, then
Newman may cast doubt on the constitutional underpinning of our
decision in Kelly. However, we need not resolve this point of law
because Kelly does not control Reyes's case.
In Kelly, the sentencing court attempted to add
restitution as an independent component of the defendant's sentence.
Reyes's case is different. Judge Souter did not impose restitution
as a new independent component of Reyes's sentence. Rather, he
added restitution as a condition of Reyes's already-existing
probation. See AS 12.55.100(a)(2). Kelly recognizes that these two
types of restitution orders are discrete that they rest on
separate powers of the sentencing court. [Fn. 21]
Under Kelly, Judge Souter was not authorized to add
restitution as a new independent component of Reyes's sentence. But
Kelly does not answer the question posed here: could Judge Souter
add restitution as a new condition of Reyes's probation?
This question is difficult because the legislature
intended probation to be modifiable. AS 12.55.090(b) declares that
the sentencing court "may revoke or modify any condition of
probation, or may change the period of probation". It practically
goes without saying although the United States Supreme Court
expressly said it in United States v. DiFrancesco [Fn. 22] that
the double jeopardy clause is not violated when a sentencing court
revokes a defendant's probation and imposes a previously-suspended
prison term. In such circumstances, the defendant's sentence has
not been "increased" because, from the beginning, it was understood
that the defendant's imprisonment would remain suspended only if the
defendant abided by the conditions of probation.
DiFrancesco held that, for purposes of the federal double
jeopardy clause, a criminal sentence does not have the same
"finality" as a verdict of acquittal. [Fn. 23] Thus, while verdicts
of acquittal are virtually immune from judicial re-examination,
legislatures may grant courts significant power to re-examine
criminal sentences and modify them to the defendant's detriment
without defeating the defendant's "legitimate expectations" of
finality. [Fn. 24] Since the DiFrancesco decision, most courts have
held (either explicitly or implicitly) that when a defendant
challenges a modification of their sentence on double jeopardy
grounds, the double jeopardy issue must be resolved by examining the
applicable sentencing statutes and deciding whether, from the
beginning, the court was authorized to modify the sentence in that
way. [Fn. 25]
As noted above, probation is designed to be modifiable.
There is, however, considerable debate regarding the circumstances
in which a court is empowered to modify the conditions of probation
to a defendant's detriment. Some courts hold that, even though
there may be good reason to modify the conditions of probation, the
conditions of probation can be made more severe only if the
sentencing court finds that the defendant has violated the existing
conditions of probation. [Fn. 26] Other courts hold that a
sentencing court can make such modifications to a defendant's
probation even in the absence of a probation violation, but the
record must demonstrate a significant change of circumstances that
provides a reasonable basis for the more severe conditions of
probation. [Fn. 27]
Alaska cases illustrate the poles of this debate. For
example, in O'Shea v. State [Fn. 28], we recognized that AS
12.55.090(c) gives a sentencing court the authority to extend a
defendant's term of probation (up to the maximum number of years
specified in the statute) when the defendant is found to have
violated the conditions of probation. Moreover, we held that a
defendant's unauthorized absence from probation will toll the
running of the probationary term in effect, extending the term
of probation even further. [Fn. 29] But in Hester v. State [Fn.
30], we held that a court violated the double jeopardy clause by
extending the defendant's term of probation by two years when the
defendant was re-sentenced following a successful sentence appeal.
Reading O'Shea and Hester together, this court has
implicitly recognized that a court may modify probation to the
defendant's detriment without violating the double jeopardy clause
when the applicable statutes authorize the modification as they
do when the court finds that the defendant has violated probation.
But, once sentence is meaningfully imposed, a sentencing court does
not have the power to alter probation to the defendant's detriment
simply because the court comes to believe that a longer probationary
term or more onerous conditions of probation would be better.
In Reyes's case, it was clear at Reyes's original
sentencing that his victim had suffered severe psychological injury
and would need extensive care. The court did not order Reyes to
make payments toward the cost of this care, apparently because
government assistance programs were going to pay for it. This fact
did not necessarily bar a restitution order: AS 12.55.045(a)
authorizes a sentencing court to order a defendant to pay
restitution "to a public ... organization that has provided or is
or will be providing counseling [or] medical ... services to the
victim". But no restitution was requested or ordered.
By the time of Reyes's re-sentencing, the government
funding had ceased, and the victim's family was now bearing the cost
of her hospitalization and treatment. Because of this, the State
now asked that restitution be added to Reyes's conditions of
In Burton v. Superior Court [Fn. 31], the Arizona Court
of Appeals addressed a similar case. At the defendant's original
sentencing, the State had neglected to seek restitution for the harm
caused by the defendant's crime. Months later, the State petitioned
the sentencing court to impose restitution as a new condition of the
defendant's probation, and the court granted this request. But on
appeal, the court of appeals reversed the sentencing court's action:
[When] sentence is suspended and the defendant
is placed on probation on certain specific terms and conditions,
those terms and conditions are fixed [barring] an event which
constitutes a reasonable basis to change them. ... [When]
additional burdens are [later] imposed on the probationer, such as
additional restitution, ... the record must contain evidence that
the probationer violated a condition of probation upon which to
place the burden. The new burden is then imposed in lieu of
Burton, 558 P.2d at 995.
Because the basis for the restitution order the damage
inflicted by Burton's crime had been known at Burton's original
sentencing, and because nothing had stopped the government from
seeking restitution at that time, the Arizona Court of Appeals ruled
that the sentencing court had exceeded its power when it added
restitution to Burton's conditions of probation. In other words,
the court held that the government's unexplained failure to seek
restitution at the original sentencing hearing was not a reasonable
basis for imposing restitution later.
We reach a similar conclusion in Reyes's case. The
factual basis to support a restitution order was known at the time
of Reyes's original sentencing, but the State apparently did not
seek restitution and, in any event, Judge Souter did not order
restitution. Restitution was ordered only after the government
stopped paying for the victim's psychiatric care.
As noted above, there is a split among the states
regarding a sentencing court's ability to modify the conditions of
probation to a defendant's detriment. Some states hold that this
can be done only after the defendant has violated probation. Other
states hold that, even without a violation, this can be done if
there has been a significant change in circumstances warranting the
imposition of more onerous conditions. But even if we adopted the
rule allowing modification of probation conditions whenever there
has been a significant change in the relevant circumstances, no such
change occurred in Reyes's case. The fact that someone else is now
paying for the victim's care is not a sufficient change of
circumstances to trigger the sentencing court's conditional
authority to modify the conditions of Reyes's probation.
We are not saying that the restitution order is factually
unjustified, nor are we saying that the victim's family can not sue
Reyes for the damage he has caused. But Judge Souter did not impose
restitution as a condition of Reyes's probation at the original
sentencing, and Alaska law does not authorize the judge to go back
and add this condition to Reyes's probation now.
Because the Alaska sentencing statutes did not authorize
Judge Souter to add restitution to the conditions of Reyes's
probation, we vacate that newly-added condition.
Reyes's eligibility for parole; whether his composite
sentence is "presumptive"
At the re-sentencing, Judge Souter declared that he was
going to correct "something that [was] a bit ambiguous in [Reyes's]
first sentence". The judge stated:
The first sentence said: "Eight years of
the sentence on Counts I, II, and III is presumptive." What it left
out [was] whether ... the consecutive time from Counts II and III
is presumptive and is to be added to the eight years presumptive on
Count I. That was my intent. [So] I'm going to reword [the judge-
ment] this time so it says ... "a total consecutive presumptive term
of twelve years, nine months".
On appeal, Reyes contends that this was an illegal
increase in his sentence, and the State concedes error. But before
we accept the State's concession of error in a criminal case, we
must independently evaluate the issue ourselves. [Fn. 32] In this
case, we conclude that the State's concession of error is ill-
The issue here is Reyes's eligibility for discretionary
parole. For purposes of this appeal, the relevant difference
between a presumptive prison term and a normal prison term is that
a defendant serving a presumptive term has restricted eligibility
for parole. Both Reyes and the State believe that Judge Souter
imposed an additional restriction on Reyes's parole eligibility.
We conclude, however, that this is not so.
Our first premise, derived from the presumptive sentencing
statutes, is that judges have no choice whether to apply the
presumptive sentencing laws to a particular defendant. In the
various subsections of AS 12.55.125, the legislature has declared
which defendants are subject to presumptive terms of imprisonment,
and what those presumptive terms are.
When a presumptive term applies to the defendant's crime,
the sentencing judge has a conditional power to adjust that
presumptive term under AS 12.55.155. And if the sentencing judge
concludes that such an adjustment still fails to achieve justice,
the judge may refer the defendant's case to the statewide three-
judge sentencing panel under AS 12.55.165. But the sentencing judge
has no power to sentence the defendant as if the presumptive
sentencing laws did not apply. [Fn. 33]
Our next premise, derived from the parole statutes, is
that Judge Souter's decision to label Reyes's term of imprisonment
"presumptive" had absolutely no effect on Reyes's eligibility for
discretionary parole. Under the facts of this case, Reyes's parole
eligibility is set by statute.
Reyes stands convicted of three counts of sexual abuse of
a minor in the first degree. As a first felony offender, Reyes was
subject to a presumptive term of 8 years' imprisonment on each
count. [Fn. 34] Judge Souter had the authority to increase this
term of imprisonment because the State proved one aggravating factor
(Reyes had engaged in similar conduct with another victim). [Fn.
35] Because of this aggravating factor, Judge Souter was authorized
by AS 12.55.155(a) to consider any term of imprisonment up to the
Judge Souter ultimately sentenced Reyes to a composite
term of 12 years, 9 months' imprisonment. The judge achieved this
composite term by sentencing Reyes to an enhanced term of 10 years
on Count I, then imposing partially consecutive 10-year terms on
Counts II and III.
AS 33.16.090(b) declares (with certain exceptions not
pertinent here) that "a prisoner is not eligible for discretionary
parole during the term of a presumptive sentence". The statute
adds, however, that such prisoners are eligible for discretionary
parole "during a term of sentence enhancement imposed under
AS 12.55.155(a) or during the term of a consecutive or partially
consecutive presumptive sentence imposed under AS 12.55.025(e) or
(g)." [Fn. 36]
Thus, defendants subject to presumptive sentencing are
eligible for discretionary parole to a limited extent if their
presumptive term has been enhanced because of aggravating factors,
or if they have received consecutive or partially consecutive
presumptive sentences. In such cases, defendants become eligible
for parole (under the conditions set out in AS 33.16.100) after they
have served the unadjusted presumptive term for their most serious
offense (minus credit for good time). [Fn. 37]
Reyes was convicted of three counts of first-degree sexual
abuse of a minor, an offense that carries an 8-year presumptive
term. The remainder of Reyes's sentence the additional 4 years,
9 months is attributable to a combination of enhancement under
AS 12.55.155(a) and the judge's decision to impose partially
consecutive sentences. Thus, by statute, Reyes will be eligible for
discretionary parole under AS 33.16.100 after he has served 8 years
in prison (counting his credit for good time). This was true before
Judge Souter said anything about making the additional time
"presumptive", and it remains true. [Fn. 38]
AS 33.16.100 governs parole eligibility for defendants who
have served their unadjusted presumptive term. The general rule,
codified in AS 33.16.100(c), is that parole eligibility arrives
after the defendant has served "at least one-fourth of the period
of confinement imposed, one-fourth of an enhanced period of
confinement imposed under AS 12.55.155(a), or any minimum term set
[by the judge] under AS 12.55.115 at sentencing, whichever is
greater." Reyes, however, was convicted of an unclassified felony
under AS 12.55.125(i). For him, AS 33.16.100(d) prescribes a
somewhat different rule:
A prisoner who is sentenced for a term
under AS 12.55.125(a), (b), (c), or (i) may not be released on
discretionary parole until the prisoner has served the mandatory
minimum term under AS 12.55.125(a), (b), (c), or (i), at least one-
third of the period of confinement imposed, or any minimum term set
[by the judge] under AS 12.55.115 at sentencing, whichever is
Reyes received a presumptive term, not a mandatory minimum
term. Judge Souter did not exercise his power under AS 12.55.115
to restrict Reyes's eligibility for parole release. And, unlike its
sibling provision, AS 33.16.100(d) does not require a defendant to
serve any fixed portion of an enhanced presumptive term imposed
under AS 12.55.155(a). Thus, AS 33.16.100(d) places only one
restriction on Reyes's eligibility for parole: he must serve "at
least one-third of [his composite] term of confinement".
Reyes's composite term is 12 years, 9 months. Thus,
AS 33.16.100(d) declares that Reyes will not be eligible for
discretionary parole until he has served 4 years, 3 months in
prison. Reyes will have met this requirement by the time he becomes
eligible for parole in the first place that is, by the time he
finishes serving his 8-year unadjusted presumptive term. Again,
Judge Souter's decision to label Reyes's sentence "presumptive" has
no effect on this result.
We AFFIRM Reyes's composite term of 12 years, 9 months to
serve. We VACATE the newly-added condition of probation requiring
Reyes to make restitution for his victim's psychiatric care. And
with regard to Judge Souter's declaration that Reyes's entire
sentence is "presumptive", we hold that the purported "change" in
Reyes's sentence was actually no change at all. Reyes's parole
eligibility is controlled by statute, and that parole eligibility
was unaffected by Judge Souter's decision to re-label the sentence
See Reyes, Memorandum Opinion No. 3752, pp. 12-13.
See id. at 13-14.
See id. at 16-17.
United States Constitution, Fifth Amendment; Alaska Consti-
tution, Article I, Section 9.
707 P.2d 900 (Alaska App. 1985), aff'd, 723 P.2d 85 (Alaska
See id., 707 P.2d at 913.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an
appellate court is to affirm a sentencing decision unless the
decision is clearly mistaken).
Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971).
597 P.2d 142 (Alaska 1979).
See id. at 144-45 (rejecting the federal constitutional rule
announced in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072,
23 L.Ed.2d 656 (1969)).
842 P.2d 612 (Alaska App. 1992).
See id. at 613-14.
See id. at 614.
928 P.2d 1017, 1026-28 (Utah 1996).
See id. at 1026.
See id. at 1027-28.
144 F.3d 531, 537-542 (7th Cir. 1998).
See id. at 542.
See Kelly, 842 P.2d at 614 n.1.
449 U.S. 117, 137; 101 S.Ct. 426, 437; 66 L.Ed.2d 328 (1980).
See id., 449 U.S. at 137, 101 S.Ct. at 438.
See id., 449 U.S. at 137, 101 S.Ct. at 437.
See the cases listed in the next two footnotes.
See Lippman v. State, 633 So.2d 1061, 1063-64 (Fla. 1994);
Burton v. Superior Court, 558 P.2d 992, 994-95 (Ariz. App. 1977).
See Gauntlett v. Kelley, 849 F.2d 213, 218-19 (6th Cir. 1988);
State v. Day, 511 A.2d 995, 998-99 (Vt. 1986); State v. Sepulveda,
350 N.W.2d 96, 100-07 (Wis. 1984); State v. Wagner, 410 So.2d 1089,
1090 (La. 1982).
683 P.2d 286, 288-89 (Alaska App. 1984).
797 P.2d 690, 691 (Alaska App. 1990).
558 P.2d 992 (Ariz. App. 1977).
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
In general, see Juneby v. State, 641 P.2d 823, 829-832 (Alaska
App. 1982), and on rehearing, 665 P.2d 30, 38-39 (Alaska App. 1983).
AS 12.55.025(e) and (g) are the statutory provisions that
authorize and sometimes compel consecutive sentencing.
See AS 33.16.090(c).
We express no opinion concerning Judge Souter's potential
authority to expand Reyes's parole eligibility if Reyes had proved
one or more mitigating factors.