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Osborne v. State (5/16/2008) ap-2169

Osborne v. State (5/16/2008) ap-2169

                             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


GREGORY L. OSBORNE, )
) Court of Appeals No. A-9802
Appellant, ) Trial Court No. 1JU-06-639 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No 2169 May 16, 2008
)
          Appeal  from the Superior Court,  First  Judi
          cial District, Juneau, Larry R. Weeks, Judge.

          Appearances:   David  D.  Reineke,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for the Appellant.  Jack
          S.   Schmidt,  Assistant  District  Attorney,
          Juneau,   Diane   L.   Wendlandt,   Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

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

          STEWART, Judge.

          Gregory  L.  Osborne was convicted of three  counts  of
second-degree  assault  and  one  count  of  driving  under   the
influence.   He received a composite term of 9 years imprisonment
with  30  months  to serve and the remainder suspended.   Osborne
appeals,  arguing that his sentence is excessive.   In  response,
the  State  contends  that Osborne has no  right  to  appeal  his
sentence,  and  that  this court has no  jurisdiction  to  decide
Osbornes case.
          We  conclude  that Osborne has a right  to  appeal  his
sentence,  and  that  we have jurisdiction to  consider  Osbornes
sentence   appeal.   We  nevertheless  conclude   that   Osbornes
composite  term is not excessive.  However, as we explain  below,
we  conclude  that  one aspect of the superior courts  sentencing
decision  is illegal.  We therefore direct the superior court  to
amend the judgment to correct this illegality.

          Background facts and proceedings
          On  the  afternoon of May 13, 2006, three  high  school
students were walking along Willoughby Avenue in Juneau when they
were struck from behind by a pickup truck driven by Osborne.  All
three  students were injured when they were knocked down  by  the
collision.   One  of the students ended up underneath  the  truck
when it stopped.
          Osborne  was  visibly intoxicated, and he was  arrested
after  he  performed field sobriety tests.  At the Juneau  police
station, Osborne provided a breath sample that showed he had .159
percent blood alcohol level.
          The  grand  jury  indicted Osborne on three  counts  of
second-degree assault (recklessly causing serious physical injury
to  each  of the three students) and driving under the influence.
At  Osbornes  trial,  the  jury convicted  Osborne  of  all  four
charges.
          Osborne had eight prior misdemeanor convictions,  which
included a prior conviction for driving under the influence,  but
he  was  a  first  felony  offender for purposes  of  presumptive
sentencing  (i.e.,  his sentencing on the  three  felony  assault
charges).   Under AS 11.41.210(b) and AS 12.55.125(d)(1), Osborne
faced  a presumptive range of 1 to 3 years imprisonment for  each
assault  conviction.  No aggravating or mitigating  factors  were
proposed by either party.
          Superior  Court  Judge  Larry R. Weeks  concluded  that
Osborne  posed  a  substantial danger to others  because  of  his
disregard  for the rules of society.  Judge Weeks also  concluded
that  it  was  important  to  impose  suspended  imprisonment  in
addition  to  active imprisonment so that Osborne would  have  an
incentive to change his behavior.
          On  each  assault count, Judge Weeks imposed a sentence
of  3  years  with all but 10 months suspended.   He  made  these
sentences consecutive, for a total of 30 months to serve  and  an
additional 6 years and 6 months suspended.  For driving under the
influence, Judge Weeks imposed a sentence of 1 year with all  but
20  days  suspended,  and he made this sentence  concurrent  with
Osbornes assault sentences.

          Why we conclude that Osborne has the right to
          appeal  his composite sentence, and  that  we
          have jurisdiction to hear his appeal
          The  State  argues that Osborne has no right to  appeal
his  sentence.   The State relies on AS 12.55.120(e),  which  was
enacted  as  part  of  the broad revision of Alaskas  presumptive
sentencing  scheme  following the United  States  Supreme  Courts
decision  in Blakely v. Washington.1  Alaska Statute 12.55.120(e)
restricts  the circumstances in which a defendant  may  appeal  a
composite  sentence.  The statute provides that a  defendant  may
not  appeal an individual felony sentence (on the ground that  it
is   excessive)   if  the  sentence  is  within  the   prescribed
presumptive  range, and it further provides that a defendant  may
not  appeal  a  consecutive  or  partially  consecutive  sentence
imposed  in  accordance with the minimum  sentences  set  out  in
AS 12.55.127.
          The  State  points  out that, because Osborne  received
individual sentences within the applicable presumptive range,  he
has  no  right to appeal those individual sentences on the ground
that  they are excessive.  (Osborne does not dispute this.)   The
State  further  argues that Osborne has no right  to  appeal  his
composite  sentence  on the ground that it is  excessive  because
that  composite  sentence  was imposed  in  accordance  with  the
minimum  sentences  set  out in AS 12.55.127.   To  evaluate  the
States argument, we must examine the terms of AS 12.55.127.
          AS  12.55.127 (enacted in 2004) contains the rules that
govern  concurrent  and  consecutive  sentencing.   This  statute
declares  that,  as  a  general rule, if  a  defendant  is  being
sentenced  for  two  or  more  crimes,  these  sentences  may  be
concurrent  or partially concurrent.2  But the statute enumerates
several  exceptions  to this general rule.  For  instance,  if  a
defendant  is  convicted of escape, the term of imprisonment  for
that   offense  must  be  fully  consecutive  to  the   term   of
imprisonment for the underlying crime.3
          The  portion  of the statute that applies  to  Osbornes
sentencing  is  AS  12.55.127(c)(2)(F).  This  subsection  states
that,  because  Osborne was convicted of three assaultive  crimes
under  AS 11.41, the superior court had to impose some additional
term of imprisonment for each additional crime.
          The   State  argues  that  Osborne  was  sentenced   in
accordance  with  this  provision   that  is,  he  received  some
additional  time to serve for each of his three assaults.   Thus,
the State concludes, Osborne has no right to appeal his composite
sentence.
          The   States   interpretation  of  the  statute   would
essentially  preclude  sentence appeals  of  any  consecutive  or
partially  consecutive  composite  sentence   for,  by  law,  all
consecutive sentences and partially consecutive sentences must be
imposed according to the rules laid out in AS 12.55.127.
          We  do not believe that the legislature intended for AS
12.55.120(e)  to be interpreted in this manner.  Rather,  by  its
terms,  AS  12.55.120(e)  precludes  a  sentence  appeal   of   a
consecutive   or  partially  consecutive  sentence   imposed   in
accordance  with the minimum sentences set out in AS  12.55.127.4
We  therefore  conclude  that  AS 12.55.120(e)  was  intended  to
preclude  the  appeal  of  a composite sentence  only  when  that
composite  sentence  is  less  than  or  equal  to  the   minimum
consecutive sentence mandated by AS 12.55.127.
          The  legislative  history of the statute  supports  our
interpretation.   We  have  been  unable  to  find   any   formal
discussion   of  composite  terms  of  imprisonment  during   the
committee hearings on Senate Bill 56 (24th Legislature)  the bill
          that enacted AS 12.55.120(e) in its present form.  However, the
sponsor statement offered in support of Senate Bill 56 explained:
          Under   this  bill,  a  sentence  cannot   be
          reversed as excessive if it is imposed within
          [the applicable] presumptive range or [if it]
          is    required    under   [the]   consecutive
          sentencing  legislation  enacted  last  year.
          Over  the  last  two  decades  the  appellate
          courts in Alaska have developed a large  body
          of  case  law  that  has resulted  in  court-
          specified  benchmark  sentences  that   often
          unnecessarily   limit   the   discretion   of
          sentencing  judges.  This bill replaces  some
          of those court-imposed benchmarks in favor of
          legislatively enacted sentence ranges.[5]
In  the same vein, the section-by-section legislative analysis of
Senate  Bill  56  explained that the provision limiting  sentence
appeals  makes  it  clear that the [appellate] courts  in  Alaska
cannot  reverse  a  sentence as excessive if  [it  is]  within  a
[presumptive]  range  specified  in  this  bill,  or  imposes   a
consecutive sentence required by law.6
          As  explained  above, the portion  of  the  consecutive
sentencing    statute    that   applies    to    Osbornes    case
AS   12.55.127(c)(2)(F)   required  Osborne   to   receive   some
additional  term  of imprisonment for each of  his  second-degree
assault  convictions.  However, the statute does  not  specify  a
minimum for this required additional term of imprisonment.
          Although  the parties to this appeal have  not  briefed
this  issue, it appears that this statutory requirement would  be
met  if  the sentencing court imposed as little as one extra  day
for  each  additional assault (because one  day  is  the  minimum
increment that the Department of Corrections employs to calculate
sentences).
          Returning,  then,  to  the ultimate  issue  of  whether
Osborne  can appeal his composite sentence under AS 12.55.120(e),
we  interpret this statute to mean that Osborne has  a  right  of
appeal as long as his composite sentence exceeds the upper  limit
of  the  presumptive range for any single count of  second-degree
assault  3 years  plus the minimum mandatory consecutive sentence
specified in AS 12.55.127  2 days.
          As explained above, Osbornes composite sentence for the
three  counts of second-degree assault is 9 years with 30  months
to  serve  and the remainder suspended.  He is therefore entitled
to  challenge  this sentence on the ground that it  is  excessive
(and this court has jurisdiction to hear that appeal).

          Osbornes composite term to serve is not excessive
          The  evidence at Osbornes trial showed that he had been
speeding  and  driving erratically before  he  struck  his  three
victims.   Osbornes  breath  test result  was  nearly  twice  the
statutory  limit  of  .08  percent  specified  in  AS  28.35.030.
Moreover,  Osborne  caused severe injuries to the  three  victims
when he ran them down with his pickup.
          Osbornes composite 30 months to serve is within the  1-
to 3-year presumptive range for a first felony offender convicted
          of a single count of second-degree assault.  Considering the
sentencing record as a whole, we conclude that Osbornes composite
term of 30 months to serve and an additional 6 years and 6 months
suspended is not clearly mistaken.7

          One aspect of Osbornes sentence is illegal
          As  we  mentioned  earlier,  there  is  one  aspect  of
Osbornes sentence that is illegal.
          Osborne  faced  a presumptive range of  1  to  3  years
imprisonment for each count of second-degree assault.  When Judge
Weeks imposed Osbornes three sentences for second-degree assault,
he imposed 3 years (the upper limit of the applicable presumptive
range)  on  each  count and suspended all but 10 months  of  each
sentence.
          Because  Osborne did not prove any mitigating  factors,
the  suspension of this much time was a violation  of  AS  12.55.
125(g)(1).   This  statute  provides  that,  in  the  absence  of
mitigating  factors, a defendants felony sentence of imprisonment
may  not  be  suspended ... below the low end of the [applicable]
presumptive  range.  Here, the low end of the  presumptive  range
was  1 year.  Judge Weeks therefore had to impose at least 1 year
to serve on each of Osbornes second-degree assault sentences.
          Because  Osbornes  sentences for second-degree  assault
were  not  lawfully  imposed, we must  remand  his  case  to  the
superior  court  for entry of an amended judgment  that  complies
with AS 12.55.125(g)(1).
          We note, however, that Osbornes sentence can be amended
to  comply  with  section 125(g)(1) in a  manner  that  does  not
increase his composite sentence.  Even though the superior  court
must  impose  1 year to serve for each of the three second-degree
convictions, the superior court has the authority to  make  these
sentences partially consecutive, so that they total no more  than
the 30 months to serve that Osborne originally received.  Because
it  is  possible to correct Osbornes sentence without  increasing
it, the superior court is legally obliged to do so.8

          Conclusion
          Osbornes composite term to serve is AFFIRMED,  but  the
superior  court is directed to amend the judgment  in  conformity
with this opinion.

_______________________________
  1 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

  2 AS 12.55.127(b).

  3 AS 12.55.127(c)(1).

  4 Emphasis added.

5  Undated  sponsor statement for S.B. 56, 24th  Leg.  (AK  2005)
issued  by  Senator  Gene Therriault (Senate Judiciary  Committee
file for S.B. 56, 24th Legislature) (emphasis added).

  6  Undated  sectional analysis of S.B. 56,  7 (Senate Judiciary
Committee file on S.B. 56, 24th Legislature) (emphasis added).

  7  See  McClain  v. State, 519 P.2d 811, 813-14  (Alaska  1974)
(holding  that  an  appellate court is  to  uphold  a  sentencing
decision unless the sentence is clearly mistaken).

  8  See  Christensen v. State, 844 P.2d 557,  558  (Alaska  App.
1993); Joseph v. State, 712 P.2d 904, 906 (Alaska App. 1986).

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