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Heavyrunner v. State (12/7/2007) ap-2128

Heavyrunner v. State (12/7/2007) ap-2128

                             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
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


TYLER W. HEAVYRUNNER, )
) Court of Appeals No. A-9817
Appellant, ) Trial Court No. 4FA-05-1224 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2128 December 7, 2007
)
          Appeal  from the Superior Court, Fourth  Judi
          cial  District,  Fairbanks, Randy  M.  Olsen,
          Judge.

          Appearances:  Nelson Traverso, Fairbanks, for
          the  Appellant.   Jenel M.  Domke,  Assistant
          District  Attorney, and Jeffrey  A.  OBryant,
          District  Attorney, Fairbanks, and  Talis  J.
          Colberg,  Attorney General, Juneau,  for  the
          Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Tyler  W.  Heavyrunner enticed a woman to get into  his
vehicle  (on  the pretext that he would give her a  ride  to  the
grocery  store to get formula for her infant child), and then  he
abducted  her.  Heavyrunner drove the woman to an isolated  spot,
bound her with duck tape, assaulted her, and then abandoned  her.
The  victim spent a substantial period of time in the cold before
she  was  able  to  obtain help, and as a  result  she  developed
hypothermia.   By  the  time she arrived  at  Fairbanks  Memorial
Hospital,  her  body  temperature  had  dropped  to  90   degrees
Fahrenheit.   According  to the treating physician,  the  victims
hypothermia,  coupled with her intoxication, posed a  substantial
risk of death.
          Heavyrunner  ultimately reached a plea  agreement  with
the  State.   Under  the  terms  of this  agreement,  Heavyrunner
pleaded  no  contest  to  kidnapping and second-degree  assault.1
Heavyrunner also conceded two aggravating factors under AS 12.55.
155(c):  (c)(8)  that Heavyrunner had a history of aggravated  or
repeated  instances  of assaultive behavior;  and  (c)(12)   that
Heavyrunner  was on probation from a conviction for a misdemeanor
having  assault as a necessary element at the time of the current
offenses.   In  exchange, the State dropped  pending  charges  of
first-degree sexual assault and second-degree robbery.
          The  plea  agreement specified that  Heavyrunner  would
receive  8  years to serve on the kidnapping conviction,  plus  a
consecutive  2  years  to  serve  on  the  second-degree  assault
conviction.   Further, the State would be allowed  to  argue  for
additional  jail  time, but any additional  jail  time  would  be
suspended.
          After   receiving  a  pre-sentence  report,  and  after
hearing the arguments of the parties, Superior Court Judge  Randy
M. Olsen imposed a sentence that conformed to the plea agreement.
He  sentenced  Heavyrunner to 35 years with  27  years  suspended
(i.e.,  8  years to serve) for the offense of kidnapping,  and  a
consecutive  2  years to serve for the offense  of  second-degree
assault.
          In  this  appeal, Heavyrunner argues that his  sentence
for  kidnapping  is  clearly  excessive.   Heavyrunner  does  not
contest  the 8-year time to serve component of the sentence   nor
could  he, since he agreed to this specific sentence.2   However,
Heavyrunner  argues  that 27 years of suspended  imprisonment  is
manifestly too severe.
          As   a   preliminary  matter,  the  State  argues  that
Heavyrunners claim is not ripe for decision  that Heavyrunner has
no  right  to appeal the imposition of the 27 years of  suspended
imprisonment  unless and until the superior  court  revokes   his
probation and imposes some or all of this suspended imprisonment.
          The  State  is  mistaken.  As this Court  explained  in
Jimmy v. State, 689 P.2d 504, 505 (Alaska App. 1984), even though
suspended  imprisonment is not the equivalent of time  to  serve,
[i]n  determining  whether [a] sentence  is  excessive,  we  must
consider  the  sentence in its entirety, including all  suspended
time.   Accord, Wassillie v. State, 911 P.2d 1071,  1074  (Alaska
App. 1996).
          This   Court   has,   on   occasion,   given   specific
consideration to the suspended portion of a defendants  sentence.
For  instance,  in Williams v. State, 859 P.2d 720,  723  (Alaska
App.  1993),  this  Court found that the sentencing  judge  could
properly  conclude  ... that a substantial  period  of  suspended
incarceration was called for to serve as a deterrent in the event
that   [the  defendants]  efforts  toward  rehabilitation  proved
unsuccessful.   And  in Hurd v. State, 107  P.3d  314,  321,  335
(Alaska   App.   2005),  this  Court  reviewed  a  sentence   for
          excessiveness when the sentence of imprisonment was suspended in
its  entirety  except  for the portion  that  the  defendant  had
already served.
          We  therefore  turn  to  the question  of  whether  the
suspended portion of Heavyrunners sentence is excessive.
          Kidnapping  is  an unclassified felony that  carries  a
penalty  of  5  to  99 years imprisonment.3   The  sentence  that
Heavyrunner negotiated with the State  8 years to serve  is among
the  most  lenient that might be imposed on a defendant convicted
of this crime.
          Although  Heavyrunner was a first felony  offender,  he
had  five  prior misdemeanor convictions.  Three  of  these  were
convictions  for  fourth-degree assault; in all  three  of  these
cases, Heavyrunner beat up his girlfriend.
          Additionally, Heavyrunners DNA matched the DNA that was
found  on  the  victim  of  a  sexual assault  that  occurred  in
Anchorage  less than four months before the present offense.   As
part of the plea agreement in this case, the State agreed not  to
charge Heavyrunner with this Anchorage sexual assault.
          Based   on   Heavyrunners   criminal   history,    plus
Heavyrunners  conduct in the present case, Judge Olsen  concluded
that  Heavyrunner was extremely dangerous and that his  prospects
for   rehabilitation  were  not  good.   The  judge  noted   that
Heavyrunner had been sentenced for other crimes in the past,  and
that he had been on probation, but he had not been deterred.
          Although Judge Olsen accepted the agreed-upon  8  years
to  serve,  he added 27 suspended years to Heavyrunners  sentence
apparently  both as a deterrent and as a safeguard.  Judge  Olsen
declared  that  his  aim  in  imposing  this  suspended  term  of
imprisonment  was  to make sure that if Heavyrunner  got  out  of
prison  and  [continued] along the way that [he  has],  then  the
state  will  have the chance to lock [him] back up and  keep  the
community safe.
          Given   this   record,   we   readily   conclude   that
Heavyrunners  sentence is not clearly mistaken.  As in  Williams,
859  P.2d  at 723, Judge Olsen could reasonably conclude  that  a
substantial period of suspended incarceration was called  for  to
serve  as  a  deterrent in the event that [Heavyrunners]  efforts
toward rehabilitation proved unsuccessful.
          However, in examining the record, we have discovered  a
problem in the wording of the judgement.
          The judgement states that, of the 8 years to serve that
Heavyrunner   received   for  kidnapping,   [f]ive   years   [is]
presumptive.    The  judgement  further  states  that,   of   the
consecutive 2 years to serve that Heavyrunner received for second-
degree assault, [o]ne year [is] presumptive.
          Judge   Olsens  decision  to  label  5  years  of   the
kidnapping  sentence  and  1  year of the  second-degree  assault
sentence as presumptive apparently stems from a confusion between
presumptive  sentences  and mandatory  minimum  sentences.   This
confusion is demonstrated by the way in which the parties and the
court  discussed  this  issue  toward  the  end  of  Heavyrunners
sentencing hearing:
          
               Prosecutor:  Your Honor, theres  another
               issue.  ...  The first five years [of] the
          kidnapping  [sentence are] presumptive.   Its
          an    unclassified   felony,   [and]    under
          [AS] 12.55.125(b), [a defendant convicted  of
          this  crime] shall be sentenced to a definite
          term  of  imprisonment  [of]  at  least  five
          years, but not more than ninety-nine.
          
               The  Court:  Mr. [Defense Attorney], any
          challenge to that?
          
               Defense Attorney:  No.
          
               The Court: That the first five years are
          presumptive?
          
               Defense Attorney:  [no verbal response]
          
          But as this Court noted in Soundara
v.  State,  107 P.3d 290 (Alaska App.  2005),
kidnapping   does   not   carry   a    5-year
presumptive  term.   Rather,  it  carries   a
5-year   mandatory  minimum  term.    As   we
explained:

     A  mandatory minimum term is  the  least
possible sentence that can be imposed  for  a
particular   crime.    A  mandatory   minimum
represents the legislatures assessment of how
much  prison  time should be  imposed  on  an
offender  even when the offenders  background
is  extremely favorable and the offender  has
engaged in the most mitigated conduct  within
the definition of the offense.  A presumptive
term,  on the other hand, is intended  for  a
typical   offender.   The  presumptive   term
represents the legislatures judgement  as  to
the appropriate sentence for a typical felony
offender   (i.e.,   an  offender   with   the
specified number of prior felony convictions,
and with a typical background) who commits  a
typical  act  within the  definition  of  the
offense.

Soundara,  107 P.3d at 300 (emphasis  in  the
original) (footnotes omitted).
          In  other  words, contrary  to  the
prosecutors  argument, the defense  attorneys
concession,   and   Judge   Olsens    ruling,
mandatory  minimum terms of imprisonment  are
not  presumptive terms.  Thus, no portion  of
Heavyrunners   sentence  for  kidnapping   is
presumptive.
          (See also Malloy v. State, 153 P.3d
1003, 1008-09 (Alaska App. 2007), Carlson  v.
State,  128  P.3d  197, 203-04  (Alaska  App.
2006),  and Page v. State, 657 P.2d 850,  855
(Alaska  App.  1983),  all  recognizing  that
sentencing  for  the crime  of  second-degree
murder  is  not  governed by the  presumptive
sentencing  law.  Second-degree murder,  like
kidnapping,  is one of the crimes  which  are
subject to indeterminate sentencing under  AS
12.55.125(b).)
          It  may  be  that, by  calling  the
first   5   years  of  Heavyrunners  sentence
presumptive,   Judge  Olsen   and   the   two
attorneys  meant to describe  the  fact  that
Heavyrunner   would  not  be   eligible   for
discretionary  parole during those  5  years.
See  AS 33.16.090(b)(1), which declares  that
[a]  prisoner ... who is sentenced ...  to  a
single sentence under AS 12.55.125(a) or  (b)
may  not be released on discretionary  parole
until  the  prisoner has served the mandatory
minimum  term under [section 125(a) or  (b)],
[or]   one-third  of  the  active   term   of
imprisonment imposed.
          However,  as can be seen  from  the
text of AS 33.16.090(b)(1), the limitation on
parole  eligibility stems from the fact  that
the   prisoner  faced  a  mandatory   minimum
sentence,   not   a   presumptive   sentence.
Labeling  a portion of Heavyrunners  sentence
as presumptive is both legally incorrect and,
potentially,  a  cause  of  future  confusion
because  different provisions of AS 33.16.090
govern  the  parole eligibility of  prisoners
who  are  subject to presumptive  sentencing.
See AS 33.16.090(b)(2)  (4).
          For  related reasons, it was  wrong
for  Judge Olsen to label the first  year  of
Heavyrunners  2-year  sentence  for   second-
degree assault as presumptive.
          Under  Alaska sentencing law before
March 2005, a felony offender who was subject
to   presumptive  sentencing  faced  a  fixed
presumptive term of imprisonment  that  could
be  adjusted by the sentencing judge based on
aggravating  and  mitigating  factors.    The
parole  eligibility statutes at the time,  AS
33.16.090   100  (pre-March  2005  versions),
drew a distinction between (1) the portion of
the  prisoners sentence that was attributable
to  the legislatively fixed presumptive term,
and (2) the portion of the prisoners sentence
that  was  attributable  to  a  judge-imposed
sentence  enhancement  based  on  aggravating
factors.  Under former AS 33.16.090(b)   (c),
a   prisoner  who  was  sentenced  under  the
presumptive  sentencing law was not  eligible
for  parole  during  the legislatively  fixed
presumptive   term,   but   was    (generally
speaking)  eligible  for  parole  during  the
judge-imposed sentence enhancement.
          However,  this  framework  has  now
changed.   Under Alaskas current  presumptive
sentencing  law,  felony  offenders  who  are
subject   to   presumptive  sentencing   face
presumptive ranges of imprisonment   and  the
parole  eligibility statute has been  amended
accordingly.
          AS   33.16.090  no  longer  defines
parole eligibility based on presumptive terms
and   sentence  enhancements.   Rather,   the
parole  eligibility  of  defendants  who  are
subject to presumptive sentencing now  varies
according  to  (1)  what  presumptive   range
applied to them, (2) whether they received  a
sentence  within  or below  that  presumptive
range,  or  instead  a  sentence  above   the
presumptive  range,  (3)  whether  they  were
sentenced for two or more crimes, and, if so,
(4)  whether  they  received  concurrent   or
consecutive sentences.
          For  defendants  like  Heavyrunner,
who receive consecutive sentences for two  or
more  crimes, parole eligibility is  governed
by AS 33.16.090(b)(7):

     [A   prisoner   who  is  sentenced]   to
consecutive    or    partially    consecutive
sentences    may   not   be    released    on
discretionary parole until the  prisoner  has
served the greatest of

     (A) the composite total of any mandatory
minimum sentence or sentences ... ;

     (B)  any  term  set [by  the  sentencing
judge] under AS 12.55.115; or

     (C)  the amount of time that is required
to  be served under [AS 33.16.090(b)](1)  (5)
...   for   the  sentence  imposed  for   the
[prisoners] primary crime, had that been  the
only  sentence  imposed, plus one-quarter  of
the composite total of the active term[s]  of
imprisonment   imposed  as   consecutive   or
partially consecutive sentences ...  for  all
crimes other than the primary crime.

This  last  provision, AS 33.16.090(b)(7)(C),
is the one that applies to Heavyrunner.
          Heavyrunners   primary   crime   is
kidnapping.4   If he had been sentenced  only
for   this  crime,  then,  under  AS   33.16.
090(b)(1),  he  would not have been  eligible
for   parole  until  he  served  the   5-year
mandatory  minimum  sentence  prescribed   by
AS  12.55.125(b).  However,  Heavyrunner  was
sentenced  for  an additional crime,  second-
degree assault, and he received a consecutive
2-year sentence for that crime.
          Because     Heavyrunner    received
consecutive sentences, his parole eligibility
is  governed by AS 33.16.090(b)(7)(C).  Under
that  statute,  he will not be  eligible  for
discretionary parole until he serves  the  5-
year    mandatory   minimum   sentence    for
kidnapping  plus one-quarter of [his  2-year]
active  term  of imprisonment for  his  other
crime.   In other words, Heavyrunner will  be
eligible   for  discretionary  parole   after
serving 5 years.
          Thus,  the  fact  that  1  year  of
Heavyrunners  2-year  sentence  for   second-
degree assault is described as presumptive in
the  judgement is both misleading and  likely
to   cause  future  confusion.   Despite  the
wording        of        the       judgement,
AS    33.16.090(b)(7)(C)    specifies    that
Heavyrunner  will  in fact  be  eligible  for
discretionary  parole  after  he  has  served
6  months  of  his consecutive  sentence  for
second-degree assault.
          (See  also Reyes v. State, 978 P.2d
635, 641-42 (Alaska App. 1999), where we held
that  a sentencing judge has no discretionary
authority to alter the status of a defendants
sentence from non-presumptive to presumptive,
or vice-versa.)
          Accordingly, we direct the superior
court to amend the judgement by striking  the
two   clauses  that  refer  to  portions   of
Heavyrunners sentences as presumptive.

_______________________________
  1 AS 11.41.300(a)(1)(C) and AS 11.41.210(a)(2), respectively.

  2  See  AS  12.55.120(a) (declaring that a  defendant  may  not
appeal  a sentence of imprisonment that was imposed in accordance
with  a  plea agreement ... [that] provided for imposition  of  a
specific sentence or a sentence equal to or less than a specified
maximum sentence).

3 AS 12.55.125(b).

4See AS 33.16.090(c)(1) and AS 12.55.127(d)(4).

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