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Whiting v. State (9/12/2008) ap-2183

Whiting v. State (9/12/2008) ap-2183

                             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


MICHAEL T. WHITING, )
) Court of Appeals No. A-10035
Appellant, ) Trial Court No. 3PA-06-2984 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2183 September 12, 2008
)
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Palmer, Kari C.  Kristiansen,
          Judge.

          Appearances:    Barrett  Schultz,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Suzanne   C.   Powell,   Assistant   District
          Attorney,  and  Roman J.  Kalytiak,  District
          Attorney,  Palmer,  and  Talis  J.   Colberg,
          Attorney General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          Michael  T. Whiting pleaded no contest to the crime  of
attempted    third-degree   controlled    substance    misconduct
(attempting to possess cocaine with intent to distribute it)1 and
one   count  of  fourth-degree  controlled  substance  misconduct
(possession  of  oxycodone).2  For these  two  offenses,  Whiting
received  concurrent sentences of 5 years with 1  year  suspended
          and 5 years with 4 years suspended, respectively.  He now appeals
his sentence on four grounds.
          First,  Whiting argues that the superior court  applied
the  wrong  standard  of  proof when the  court  decided  whether
Whiting had proved proposed mitigating factors.  It appears  that
Whiting is correct.  However, the error was harmless  because the
superior  court applied a lower standard of proof  than  the  law
required.
          Next,   Whiting   contends  that  the  superior   court
committed  error when the court rejected his proposed  mitigating
factor of small quantities, AS 12.55.155(d)(13), with respect  to
his  attempted  possession of cocaine with intent to  distribute.
As  we  explain here, we conclude that the superior court reached
the correct result under the facts of Whitings case.
          Third,  Whiting argues that the superior  court  should
have  found mitigating factor (d)(15) (small amount for  personal
use  in  ones  home) with respect to his possession  of  the  two
oxycodone  pills.   For the reasons explained here,  we  conclude
that  the  superior  court misinterpreted the  elements  of  this
mitigator.   We therefore direct the superior court to reconsider
whether Whiting proved that these pills were intended solely  for
his personal use at home.
          Finally,  Whiting argues that the superior court  erred
when  it  rejected the conclusion of a substance abuse  counselor
that  Whiting had been doing well in treatment.  We conclude that
the  superior  court  had  adequate  grounds  for  rejecting  the
counselors view of this matter.
Background facts

          On   October  31,  2006,  Probation  Officers
Richard  Pass and Conrad Brown were conducting  routine
home checks on various probationers.  When they arrived
at  Whitings  residence, they observed Whiting  pulling
out  of  his  driveway in a red car.   Pass  knew  that
Whitings  drivers license was revoked, so the  officers
pulled him over.
          When  the officers asked Whiting what he  was
doing,  Whiting replied that he was going to the  store
for gas and chewing tobacco.  Pass told Whiting that he
intended  to  collect a urine sample from Whiting,  and
then  Pass  asked Whiting what the urine  sample  would
reveal.   Whiting  admitted that his urine  would  test
positive for methamphetamine.
          The officers placed Whiting in restraints and
placed him in the back of their patrol car.  They  then
began  to  search  the vehicle that  Whiting  had  been
driving (which Whiting claimed did not belong to  him).
Pass  found a small black bag on the passenger seat  of
the  car.   Inside  this  bag, he  found  paraphernalia
consistent  with  drug  use,  including  a  very  small
plastic spoon, some pills, and a container with a white
powdery substance.
          A  Wasilla police officer was summoned to the
scene.   This  officer  read the  Miranda  warnings  to
Whiting,  and  Whiting  waived  his  rights.    Whiting
admitted  that he would test positive for  cocaine  (in
addition  to  the  methamphetamine  he  had  previously
admitted).  Whiting stated that the black bag  was  not
his   that he had found it at an apartment complex down
the  street.   However, Whiting admitted that  the  bag
contained  a  couple  of  pain  killers  that  he   had
purchased from an unidentified source, to help ease the
pain of a recent surgery.
          In addition, Whiting told the officer that he
said  he  was in the process of buying the car that  he
had  been  driving  although he did not  know  who  the
seller   was,   and  he  was  not  sure   whether   the
registration  had been transferred yet.   Whiting  then
asked  to  have an attorney present, and the  interview
was concluded.
          The  car  was  impounded,  and  a  subsequent
search of the vehicle yielded two electric scales  with
cocaine   and   methamphetamine   residue,   a   baggie
containing  thirty-one smaller baggies with a  Superman
symbol  on  them,  a baggie containing  22.8  grams  of
dimethylsulfone (a relatively inert substance which  is
commonly used as a cutting agent for methamphetamine)3,
another   baggie   containing  8.9  grams   of   sodium
bicarbonate   (i.e.,  baking  soda),   another   baggie
containing  residue  of cocaine and methamphetamine,  a
glass  pipe, a pill crusher, three cut straws, aluminum
foil,  a  lighter,  and a pocket tin containing  a  cut
straw,  a plastic spoon, and five pills.  Two of  these
pills     were     oxycodone,     two     more     were
acetaminophen/hydrocodone, and the fifth was tizanidine
(a muscle relaxant).
          A  grand jury initially indicted Whiting  for
second-degree controlled substance misconduct, based on
the allegation that he possessed the oxycodone with the
intent  to  deliver  it,  and  third-degree  controlled
substance misconduct, based on the allegation  that  he
possessed the cocaine with the intent to deliver it, as
well   as   two  alternative  counts  of  fourth-degree
controlled  substance misconduct  (for  possessing  the
oxycodone and the cocaine, regardless of any intent  to
deliver  these substances).  In addition, the  district
attorneys office filed an information charging  Whiting
with  driving  while his license was revoked,  improper
use of vehicle registration or title, and one count  of
fifth-degree   controlled  substance   misconduct   for
possessing   less  than  fifty  tablets,  ampules,   or
syrettes containing hydrocodone.
          These charges were ultimately resolved  by  a
plea  bargain.   The  State dropped  the  second-degree
controlled  substance misconduct charge (possession  of
oxycodone  with  intent  to  deliver),  and  the  State
replaced    the   third-degree   controlled   substance
misconduct charge (possession of cocaine with intent to
deliver)  with  the lesser charge of  attempted  third-
degree   controlled   substance  misconduct.    Whiting
          pleaded no contest to this reduced charge, as well as
no  contest  to the fourth-degree controlled  substance
misconduct  charge  based  on  his  possession  of  the
oxycodone.   In  exchange for these  pleas,  the  State
dropped all the remaining charges.

Whitings sentencing

          Fourth-degree controlled substance misconduct
is       a      class      C      felony.4       Third-
degree  controlled substance misconduct is  a  class  B
felony,5  but  Whiting pleaded no contest to  attempted
third-degree  controlled substance  misconduct   which,
pursuant  to  AS  11.31.100(d), is a  class  C  felony.
Thus, Whiting was sentenced for two class C felonies.
          Whiting  had  three prior felony  convictions
(two   convictions   for  felony  driving   under   the
influence, plus one conviction for third-degree weapons
misconduct).   Whiting  was therefore  a  third  felony
offender  for presumptive sentencing purposes,  and  he
faced  a  presumptive sentencing range of 3 to 5  years
imprisonment for each of his offenses.6
          Whiting   conceded  two  of  the  aggravating
factors  listed in AS 12.55.155(c):  (c)(15)   that  he
had more than two prior felonies; and (c)(20)  that  he
was  on felony probation when the current offenses were
committed.  (The presence of these aggravators did  not
increase  the  superior  courts  sentencing  authority:
Whiting  was  a  third felony offender,  and  thus  his
presumptive sentencing range already encompassed the 5-
year maximum term of imprisonment for his crimes.)
          Whiting   proposed  four  of  the  mitigating
factors  listed  in AS 12.55.155(d): (d)(8)   that  his
conduct was among the least serious conduct included in
the  definition of the offense; (d)(12)  that the facts
surrounding  the  commission of his  offenses  and  his
previous  offenses established that the harm caused  by
his  conduct  was  consistently minor and  inconsistent
with   the  imposition  of  a  substantial  period   of
imprisonment; (d)(13)  that his offenses involved small
quantities of a controlled substance; and (d)(15)  that
one  of  his  offenses  (his possession  of  oxycodone)
involved  the  possession  of  a  small  amount  of   a
controlled substance for personal use in his home.
          The  State  contested these mitigators,  with
the exception of (d)(13) (small quantities).  The State
initially conceded mitigator (d)(13) (small quantities)
with  respect  to  both of Whitings offenses,  but  the
State  later altered its position and argued  that  the
small  quantity  mitigator did not  apply  to  Whitings
attempt  to  commit  third-degree controlled  substance
misconduct.
          The State conceded that the amount of cocaine
found  in Whitings possession was quite small;  indeed,
it  was only trace amounts.  However, the State pointed
          out that Whiting had not been convicted of possessing
this  trace amount with intent to deliver it.   Rather,
Whiting  had  been convicted of attempting  to  possess
cocaine  for the purpose of delivering it.   The  State
argued  that,  given  the  amount  and  kinds  of  drug
paraphernalia  that Whiting had been  carrying  in  the
car,   one  could  reasonably  conclude  that  he   was
attempting to possess much more cocaine than the  trace
amount  found in his possession  and, thus,  the  small
quantity mitigator should not apply to that crime.
          Whitings  sentencing  judge,  Superior  Court
Judge  Kari  Kristiansen, ultimately  agreed  with  the
State on this point.  She found that the small quantity
mitigator  applied  only  to  Whitings  conviction  for
possession of oxycodone, and not to his conviction  for
attempted  possession of cocaine.  She also found  that
Whiting  had  failed to prove his three other  proposed
mitigators.
          At  Whitings sentencing hearing, the  defense
called  Cathy Bishop, a woman who worked as a counselor
at  Nugens  Ranch   a  long-term residential  substance
abuse  treatment  center where Whiting  had  spent  two
years.   Bishop  testified that Whiting had  done  very
well in the treatment program and that, in her opinion,
he  was  a  good candidate for rehabilitation.   Bishop
acknowledged that Whiting had not completed the  Nugens
Ranch after-care program, and had in fact relapsed into
drug  use.  Nevertheless, Bishop asserted that Whitings
relapse  was  not  truly his fault  that  it  could  be
attributed to the fact that he was prescribed narcotics
as  pain  medication  for an injury.   However,  during
Bishops cross-examination by the prosecutor, it  became
apparent that Bishop did not know the nature of the new
charges against Whiting, and that she had only a  vague
recollection of Whitings criminal history.
          When   Judge  Kristiansen  analyzed  Whitings
potential  sentence  under the  Chaney  criteria,7  she
first  noted  that  Whiting had an  extensive  criminal
history.     Regarding   the   sentencing    goal    of
rehabilitation, Judge Kristiansen expressed doubt about
Whitings  prospects.  The judge noted that Whiting  had
already   been   given   several   opportunities    for
rehabilitation, and she stated that she  did  not  find
Bishops  testimony particularly helpful in this regard.
She  noted  that Bishop did not seem to be well-advised
as to Whitings present circumstances, and she expressed
doubts  whether Bishop understood what  doing  well  in
drug  treatment  meant.  Judge Kristiansen  also  found
that  Whiting  needed  to be confined  to  protect  the
community.
          Ultimately,   Judge   Kristiansen   sentenced
Whiting to a term of 5 years imprisonment with  1  year
suspended   (4  years  to  serve)  for  the   attempted
possession  of cocaine conviction, and to a  concurrent
term of 5 years imprisonment with 4 years suspended  (1
          year to serve) for the possession of oxycodone.  (In
other  words, Whiting received a total of  4  years  to
serve  for  these two crimes.)  Judge Kristiansen  also
revoked  Whitings probation, requiring to him to  serve
the remaining 2 years of his previous felony sentence.

Whether  the superior court applied the wrong  standard
of  proof when deciding whether Whiting had proved  his
proposed mitigating factors

          When  the State proposes aggravating  factors
or  a defendant proposes mitigating factors in a felony
sentencing   proceeding  governed  by  the  presumptive
sentencing law, the aggravating and mitigating  factors
must  be  proved by clear and convincing evidence.   AS
12.55.155(f).
          At   Whitings   sentencing   hearing,   Judge
Kristiansen  stated,  I  do  not  find  that  [Whitings
proposed  mitigating factors have]  been  proven  by  a
preponderance  [of  the evidence].   Whiting  correctly
points out that this was the wrong standard of proof.
          However,  this error is harmless  because  it
ran  in  Whitings favor:  Judge Kristiansen  applied  a
lower standard of proof than the law required.  Because
the  judge  concluded that Whiting had not  proved  his
mitigators  by  a  preponderance of  the  evidence,  it
necessarily follows that she would have concluded  that
he  failed  to  prove  these mitigators  by  clear  and
convincing evidence.

Whether  Whiting proved the mitigating factor of  small
quantity  with  respect to his attempted possession  of
cocaine for purposes of delivery

          As  explained above, one of Whitings proposed
mitigating  factors was AS 12.55.155(d)(13)   that  his
offenses  involved  small quantities  of  a  controlled
substance.   The  State conceded  that  this  mitigator
applied  to  the  fourth-degree count  (i.e.,  Whitings
possession  of  the  two pills of oxycodone),  but  the
State argued that the small quantity mitigator did  not
apply   to  the  attempted  third-degree  count  (i.e.,
Whitings  attempt to possess cocaine  for  purposes  of
delivery).
          The  State acknowledged that Whiting had only
trace  amounts of cocaine in his possession.   However,
the  State  argued  that the surrounding  circumstances
especially,  Whitings possession of a large  number  of
baggies,  a set of scales, and a substantial amount  of
cutting  agent   showed that Whiting was attempting  to
obtain  and  distribute  a  much  larger  quantity   of
cocaine.
          When  Judge  Kristiansen made her  ruling  on
mitigator (d)(13), she stated, I do not find  ...  that
[this  mitigator] appears to apply to Count  II  [i.e.,
the  attempted third-degree count].  The judge  offered
no further explanation of her ruling.
          On   appeal,   Whiting  argues   that   Judge
Kristiansens statement suggests that she believed that,
as  a matter of law, mitigator (d)(13) never applies to
the  attempted  possession  of  controlled  substances.
Given  the  evidence in Whitings case,  and  given  the
specific  argument  to  which  Judge  Kristiansen   was
responding,  Whitings suggested interpretation  of  the
judges  remark  appears unlikely.   In  context,  Judge
Kristiansens  remark appears to mean  that  she  agreed
with the States analysis of this proposed mitigator.
          In  other words, the judge did not mean  that
mitigator  (d)(13) could never apply  to  an  attempted
possession   of  controlled  substances;  rather,   she
declared  that  this  mitigator  was  not  proved  with
respect  to the particular attempted possession charged
against Whiting.
          Whiting  also argues that, when the  superior
court  assessed  mitigator (d)(13), the  only  relevant
factor  was  the  amount of cocaine found  in  Whitings
possession   and  that his possession of  the  baggies,
scales, and cutting agent was irrelevant.  We disagree.
Because  Whiting was convicted of attempted possession,
it  was  his  burden to prove by clear  and  convincing
evidence  that  he attempted to possess  only  a  small
quantity  of cocaine.  Thus, the fact that  the  police
found   only  trace  amounts  of  cocaine  in  Whitings
possession  was not dispositive; this circumstance  had
to be weighed against the other circumstances described
above:   the  fact  that Whiting had  thirty-one  small
baggies, two scales with cocaine residue on them, and a
substantial  quantity of cutting  agents.   Given  this
record,  we  uphold  Judge  Kristiansens  ruling   that
Whiting failed to prove the small quantity mitigator.

Whether  Whiting proved the mitigating factor of  small
amount ... for personal use in the defendants home with
respect to his possession of the two pills of oxycodone

          With  respect  to  Whitings  conviction   for
fourth-degree controlled substance misconduct based  on
his  possession  of  two  pills  containing  oxycodone,
Whiting  proposed mitigating factor (d)(15):  that  his
offense involved the possession of a small amount of  a
controlled substance for personal use in the defendants
home.
          It is undisputed that the two oxycodone pills
were  discovered in Whitings car as he was driving away
from  his residence.  On appeal, the State argues  that
these   circumstances   i.e.,  that  the   pills   were
discovered  in  Whitings car, and that he  was  driving
away from his home  created sufficient ambiguity in the
situation to justify Judge Kristiansens conclusion that
Whiting had failed to prove this mitigator by clear and
convincing evidence.
          However,  the sentencing transcript  strongly
suggests  that Judge  Kristiansen did not  follow  this
reasoning when she rejected the proposed mitigator.  At
the  sentencing  hearing, the  prosecutor  argued  that
mitigator  (d)(15) was clearly not applicable  [because
Whiting]  was  driving in his car [and]  this  was  not
personal  use.   In other words, the prosecutor  argued
that  mitigator  (d)(15) could not  apply  because  the
oxycodone pills were not located in Whitings residence.
And  Judge Kristiansen apparently adopted this view  of
the  law  when she issued her ruling on this mitigator:
As  to [mitigator (d)(15)], I do not find that [it has]
been  proven by the preponderance[.]  I agree with  the
States arguments that ... these [controlled substances]
were not found in the defendants home.
          On  appeal,  Whiting argues  that  the  place
where  the  pills  were found is not dispositive   that
mitigator (d)(15) focuses instead on where and how  the
defendant  intends  to  use the  controlled  substance,
regardless of where the controlled substance  might  be
found at the time of the defendants arrest.
          Mitigator  (d)(15) is worded  ambiguously  on
this  point.   AS  12.55.155(d)(15)  states  that  this
mitigator  applies  to  cases where  the  defendant  is
convicted of an offense specified in AS 11.71 [i.e.,  a
controlled substance offense] and the offense  involved
the  possession  of  a  small amount  of  a  controlled
substance for personal use in the defendants home.  The
ambiguity arises from the fact that it is difficult  to
tell whether the phrase in the defendants home modifies
possession or, instead, for personal use.
          In  other words, the statute could be read as
applying  to  possession  of  a  small  amount   of   a
controlled substance in ones home, when that possession
is  for  personal use  or, alternatively,  the  statute
could  be  read as applying to possession  of  a  small
amount of a controlled substance in any location,  when
that possession is for personal use in ones home.
          The  States  argument in the superior  court,
and  Judge Kristiansens ruling, appear to be  based  on
the  first potential reading of the statute  i.e., that
the   mitigator   applies  only  when  the   defendants
possession  is  in  the defendants  home.   On  appeal,
however, the States argument appears to be based on the
second  potential  reading of  the  statute  (in  other
words,  Whitings proposed interpretation)   i.e.,  that
the  mitigator hinges on a defendants intention to  use
the  controlled  substance in their home.   The  States
appellate  brief  adopts this second interpretation  of
the  mitigator,  but  then argues  that  the  facts  of
Whitings  case  (in particular, the fact  that  he  was
driving  away  from his home) justify  a  finding  that
Whiting  had failed to prove this aggravator  by  clear
and convincing evidence.
          Neither  party has provided us with any  case
law or legislative history to resolve the ambiguity  in
the  wording  of  this statute.  There is,  however,  a
canon  of  statutory construction that counsels  us  to
interpret the statute as Whiting proposes.  That canon,
reddendo singula singulis (also known in English as the
last antecedent rule), is the doctrine that limiting or
restrictive  clauses in a statute are  normally  to  be
construed  as  referring to (that is,  as  limiting  or
restricting) the immediately antecedent clause  of  the
statute.8  Under this doctrine, we should interpret the
phrase  in  the  defendants home  as  referring  to  or
limiting the immediately preceding clause, for personal
use.   In  other words, the mitigator applies when  the
defendant  possesses  a small amount  of  a  controlled
substance  for  the purpose of using it  personally  in
their home.
          Moreover, this interpretation of the  statute
appears   to   be  reasonable.   The  fact   that   the
legislature enacted mitigator (d)(15) implies that  the
legislature   concluded  that  people  who   unlawfully
possess controlled substances should not be punished as
severely  if  they  are merely using small  amounts  of
controlled  substances in their homes.  Most controlled
substances  can not be grown or manufactured  at  home;
the  substances  must be purchased elsewhere  and  then
brought  home.  Thus, in instances where  a  person  is
apprehended outside their home after purchasing a small
amount  of  a controlled substance, it would  seemingly
fulfill the legislatures policy to allow the person  to
argue  and  prove that they only intended  to  use  the
controlled substance personally, and that they did  not
intend  to use the controlled substance until they  got
home.
          Finally,   to  the  extent  that  a   statute
defining  criminal  liability  remains  ambiguous  even
after  we subject it to recognized methods of statutory
construction,  we  must resolve that ambiguity  against
the government.9
          For  these reasons, we conclude that Whitings
proposed  interpretation of mitigator  (d)(15)  is  the
correct one.  We hold that proof of this mitigator does
not  hinge on where the controlled substance is  found,
but  rather on where and for what purpose the defendant
intends to use the controlled substance.
          As   explained  above,  the  State  (in   its
appellate  brief) appears to accept this interpretation
of  the mitigator, and the State argues that, under the
facts  of  Whitings case, Judge Kristiansen would  have
been  justified in finding that Whiting did not  intend
to use the controlled substance personally in his home.
The  problem with the States argument is that, from the
record of the trial court proceedings, it appears  that
Judge Kristiansen relied on the other interpretation of
mitigator  (d)(15)   that is, the wrong  interpretation
          when she ruled that Whiting had failed to prove this
mitigator.
          The judge did not reach the issue of Whitings
intentions  with  respect to the controlled  substance;
rather,  she  ruled that the mitigator  did  not  apply
because  Whiting  possessed  the  controlled  substance
outside his home.  For this reason, we must vacate  the
judges  ruling  and remand this issue to  the  superior
court for reconsideration.

Whether  the superior court misconstrued or  improperly
evaluated  the  testimony of substance abuse  counselor
Cathy Bishop

          At  his sentencing hearing, Whiting presented
the  testimony  of  Cathy Bishop, his former  substance
abuse  counselor.   Bishop testified that  Whiting  had
good  prospects for rehabilitation.  However,  although
Bishop  seemed  to  remember  Whiting  well,  she   was
unfamiliar with Whitings conduct underlying the current
charges,  and  she had not seen him for  about  a  year
before the sentencing hearing.
          During   her   sentencing   remarks,    Judge
Kristiansen  stated  that  she  did  not  find  Bishops
testimony helpful.  The judge concluded that Bishop was
not  well-[informed]  as to the  circumstances  of  the
defendant  at  the  present time.   And,  referring  to
Bishops   comment  that  Whiting  had  done  well   [in
treatment] for some time, Judge Kristiansen  stated,  I
just dont find that she [i.e., Bishop] understands what
that means.
          On  appeal,  Whiting takes issue  with  Judge
Kristiansens  last comment  her assertion  that  Bishop
did  not  understand  the  concept  of  doing  well  in
substance  abuse treatment.  Whiting notes that  Bishop
worked  as a substance abuse counselor for three years,
and that her experience and qualifications in this area
were  not contested at the sentencing hearing.  Whiting
further   argues  that  Bishops  conclusion   regarding
Whitings   prospects   for  rehabilitation   was   both
plausible  and supported by the evidence  that  Whiting
completed nearly two years of treatment, completed  all
twelve  AA  steps,  maintained sobriety  while  at  the
treatment   facility,   and  completed   all   homework
assignments and group sessions.
          Notwithstanding all of this, the  prosecutors
cross-examination of Bishop revealed  that  Bishop  was
unfamiliar  with Whitings criminal history and  present
circumstances, and that she had not seen him for a year
when  she testified.  It was also revealed that Whiting
did  not finish his treatment program because he had  a
relapse.   These  circumstances  provided  at  least  a
reasonable  basis  for  Judge Kristiansen  to  question
Bishops favorable evaluation of Whitings prospects  for
rehabilitation.
          Even  assuming  that Judge Kristiansen  spoke
over-hastily  when  she declared that  Bishop  did  not
understand what doing well in treatment means, the real
underlying  issue  is whether Judge Kristiansen  had  a
reasonable   basis   for  viewing   Bishops   favorable
evaluation with skepticism.  Because the record reveals
a  reasonable basis for the judges skepticism, we  find
no reversible error.

Conclusion

          We  affirm the actions of the superior  court
in  all  respects except one:  we vacate  the  superior
courts  ruling with respect to mitigator (d)(15).   The
superior  court must reconsider whether Whiting  proved
this mitigator by clear and convincing evidence.
          Whiting  alleged that this mitigator  applied
to  only  one of his offenses:  the charge  of  fourth-
degree  controlled substance misconduct, based  on  his
possession of the two pills of oxycodone.  Accordingly,
if  the  superior court finds that Whiting  has  proved
this   mitigator,  the  court  should  then  reconsider
Whitings sentence for this offense.
          However,  with  respect to Whitings  sentence
for his other offense (attempted third-degree substance
abuse  misconduct),  the  sentencing  decision  of  the
superior court is affirmed.

_______________________________
  1 AS 11.71.030(a)(1).

  2 AS 11.71.040(a)(3)(A).

3 See National Drug Intelligence Center, Louisiana Drug Threat
Assessment       (May       2001),       available        at
http://www.justice.gov/ndic/pubs0/666/meth.htm.

4   AS   11.71.040(d)  (fourth-degree  controlled  substance
misconduct is a class C felony).

5 AS 11.71.030(c).

6 AS 12.55.125(e)(3).

7  See  State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
The  Chaney  sentencing  criteria are  now  codified  in  AS
12.55.005.

8 See Linkus v. Maryland State Board of Heating Ventilation,
Air-Conditioning,  and Refrigeration Contractors,  689  A.2d
1254,  1262  (Md.  App.  1997);  Boeing  Co.  v.  Washington
Department  of  Licensing, 693 P.2d 104, 108  (Wash.  1985);
McKenzie Tank Lines, Inc. v. McCauley, 418 So.2d 1177, 1179-
1180  (Fla. App. 1982); In re Thompson, 402 N.E.2d 609,  611
(Ill.  1980).  See generally Singer, Sutherland on  Statutes
and  Statutory Construction (6th ed. 2007),  47:26, Vol. 2A,
pp.  438-442 ([When] a sentence contains several antecedents
and   several   consequents[,]   they   are   to   be   read
distributively.   The [clauses] are to  be  applied  to  the
subjects  that  seem most properly related  by  context  and
applicability.).

9 See Brookins v. State, 600 P.2d 12, 17 (Alaska 1979); Ned v.
State,  119  P.3d 438, 446-47 (Alaska App. 2005);  Wells  v.
State,  102 P.3d 972, 976 (Alaska App. 2004); Whitesides  v.
State,  88  P.3d 147, 151 (Alaska App. 2004); State  v.  ABC
Towing,  954  P.2d 575, 579 (Alaska App. 1998); Magnuson  v.
State, 843 P.2d 1251, 1253 (Alaska App. 1992).

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