Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Wooley v. State (12/11/2009) ap-2247

Wooley v. State (12/11/2009) ap-2247

                             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


EDWARD A. WOOLEY,                  
                                   
                    Appellant,       Court of Appeals No. A-9335
                                   Trial Court No. 3AN-04-4586 Civ
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                       No. 2247   December 11, 2009
                                   
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Anchorage,  Larry  D.  Card,
          Judge.

          Appearances:  Colleen A. Libbey,  Libbey  Law
          Offices, Anchorage, for the Appellant.  Diane
          L.  Wendlandt,  Assistant  Attorney  General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Richard A. Svobodny,  Acting
          Attorney General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          In  this  appeal,  we  are asked to  clarify  what  the
legislature    meant    when   they   
provided, in AS 11.46.130(a)(6), that a theft of property valued at between $50 and $500 would be enhanced by one degree from third-degree theft to second-degree theft if, within the preceding five years, the defendant has been convicted and sentenced for first-, second-, or third-degree theft on two or more separate occasions.
For the reasons explained in this opinion, we conclude that this statutory language should be interpreted as codifying the rule set forth in State v. Carlson, 560 P.2d 26, 29-30 (Alaska 1977), for identifying habitual offenders under Alaskas former criminal code the same rule that is currently codified in AS 12.55.145(a)(2)(B) for identifying those repeat defendants who are subject to increased penalties under AS 12.55.125(l).
Specifically, we interpret AS 11.46.130(a)(6) to mean that a theft which would normally be of the third degree will be enhanced to a theft of the second degree if, within the preceding five years, the defendant was convicted and sentenced for one theft, then committed another theft and was convicted and sentenced for it, and then committed the current theft.
The   underlying    facts    and
     procedural background of this case
     
               On  February 12, 2002, Edward A. Wooley stole
     a jigsaw from a hardware store in Eagle River.  Because
     this saw was valued at slightly less than $300, Wooleys
     crime  would normally have been a misdemeanor:   third-
     degree theft under AS 11.46.140(a)(1).  However, Wooley
     had  prior  convictions for theft.  In  particular,  on
     March   28,  1997   that  is,  within  the  five  years
     preceding his theft of the jigsaw  Wooley was sentenced
     for  two  separate  thefts.  (One of these  thefts  was
     committed   in  September  1996,  and  the  other   was
     committed in November 1996, but the judgements for both
     of  these  thefts were entered on the same day:   March
     28, 1997.)
          In  addition  to  the theft  of  the  jigsaw,
Wooley   also  faced  charges  stemming  from   another
attempted  theft  and from an alleged  act  of  witness
tampering.   To  resolve all of these  charges,  Wooley
entered  into  a plea agreement with the State.   Under
the  terms  of  this  bargain, the  State  dropped  the
attempted theft and the witness tampering charges,  and
Wooley pleaded guilty to second-degree theft (a felony)
under AS 11.46.130(a)(6).
          Under  this  statute,  a  theft  of  property
valued  at between $50 and $500  that is, a theft  that
would  normally  be a misdemeanor  becomes  a  class  C
felony  [if]  within  the  preceding  five  years   the
[defendant] has been convicted and sentenced on two  or
more  separate occasions for first-, second-, or third-
degree  theft.   As  part of his plea  bargain,  Wooley
stipulated  that  the two thefts he committed  in  1996
were  the predicate thefts that would support a  felony
charge under this statute.
          However,   in  February  2004,  Wooley   (now
represented  by  a new attorney) filed a  petition  for
post-conviction  relief in which  he  argued  that  his
sentence  was  illegal  and that  his  former  attorney
represented  him  incompetently.  Specifically,  Wooley
argued  that  his attorney failed to  see  that,  as  a
matter of law, Wooleys two prior theft convictions were
too   old  to  support  a  felony  theft  charge  under
AS 11.46.130(a)(6).
          As  we explained above, judgement was entered
against  Wooley for these two thefts on March 28,  1997
within the five years preceding his theft of the jigsaw
on  February 12, 2002.  But Wooley argued that the date
of  his  sentencing was not the determinative date  for
purposes  of the statute.  Instead, Wooley argued,  the
crucial  date  was the date on which the defendant  was
found to be factually guilty of the prior theft  either
the date on which the jury returned its guilty verdict,
or  the  date on which the defendant entered  a  guilty
plea.
          The superior court rejected this argument and
denied  Wooleys  petition  for post-conviction  relief.
Wooley then appealed to this Court.
          In our previous decision in this case, Wooley
v.  State,  157 P.3d 1064 (Alaska App. 2007),  we  held
that, for purposes of the five-year period specified in
AS   11.46.130(a)(6),  a  defendant  is  convicted  and
sentenced  on  the day that the court enters  judgement
against the defendant  as opposed to the day on which a
jury  finds the defendant guilty, or the day  on  which
the  defendant enters a guilty plea to the  charge.  We
therefore  concluded  that even though  Wooley  pleaded
guilty to the two prior thefts in December 1996 and  in
January 1997 (two dates outside the five-year statutory
period),  the date that mattered was the date on  which
judgement was entered against Wooley on these two theft
convictions.   That date was March  28,  1997   a  date
within the five-year period.
          Following our decision of this point,  Wooley
petitioned the Alaska Supreme Court to hear  his  case.
The  supreme court granted hearing and directed  us  to
consider one further issue in Wooleys case.
          As  we  explained  earlier in  this  opinion,
AS 11.46.130(a)(6) applies to cases where the defendant
has previously been convicted and sentenced for first-,
second-,  or third-degree theft on two or more separate
occasions   within   the  five  years   preceding   the
defendants  commission of the current  theft.   Because
the  judgements for both of Wooleys prior  thefts  were
entered  on the same day (March 28, 1997), the  supreme
court  asked  us  to  decide whether  Wooley  had  been
convicted  and  sentenced for  theft  on  two  or  more
separate   occasions   within   the   meaning   of   AS
11.46.130(a)(6).

The legal background of this case:  the competing rules
of interpretation adopted in State v. Carlson and State
v. Rastopsoff

          Legislatures often enact higher penalties for
repeat  criminal offenders  for example,  by  making  a
repeat  offense  a  higher  degree  of  crime,  or   by
providing an increased mandatory minimum penalty for  a
repeat  offense.  But these statutes sometimes fail  to
precisely  define  which defendants qualify  as  repeat
offenders.
          Thirty  years  ago, the Alaska Supreme  Court
faced  this  problem in State v. Carlson, 560  P.2d  26
(Alaska  1977).   The  issue  in  Carlson  was  how  to
interpret the habitual criminal statute that  was  part
of  Alaskas  pre-1980  criminal  code.   This  statute,
former   AS   12.55.050,  established   a   system   of
progressively  greater penalties for  felony  offenders
who had previously been convicted of one, two, or three
felonies.1
          The  defendant  in State v.  Carlson,  a  man
named  Tyrone  Davenport, had committed four  felonies.
Davenport  committed  the first of  these  felonies  in
1969,  and  he was sentenced for this crime  that  same
year.2  In 1971, Davenport committed two more felonies.
          Although these crimes were committed on separate
occasions, Davenport was sentenced for both  crimes  on
the  same  day  (in early 1972).3  Then,  in  mid-1975,
Davenport committed a fourth felony.4
          The  State argued that Davenport fell  within
the statutory category of defendants who had previously
been  convicted  of  three or more felonies,  and  that
Davenport   should   therefore   be   sentenced   under
subsection  (3) of the habitual criminal  statute.   In
other  words, the State argued that Davenports  minimum
sentence  was  20  years imprisonment and  his  maximum
sentence was life imprisonment.5
          When  Superior Court Judge Victor D.  Carlson
refused to sentence Davenport under subsection  (3)  of
the  statute,  and instead imposed a sentence  of  only
5  years  imprisonment,  the State  sought  a  writ  of
mandamus from the supreme court.6
          The   supreme  court  rejected   the   States
position  that a defendants status as a second,  third,
or  fourth  offender  should be  determined  by  simply
counting   up  the  number  of  the  defendants   prior
offenses.   The court concluded that such a rule  would
run  counter to the policy underlying habitual offender
statutes:
     
          Habitual  criminal statutes are  founded
     on  the  general  principle  that  persistent
     offenders   should  be  subject  to   greater
     sanctions  than those who have been convicted
     only once.  These statutes serve as a warning
     to first time offenders and provide them with
     an  opportunity to reform.  It is  only  upon
     subsequent convictions for repeated  criminal
     conduct  that increasingly stiffer  sentences
     are imposed.  The reason the sanctions become
     increasingly severe is not so much  that  the
     defendant  has sinned more than  once[,  but]
     that  he  is  deemed  incorrigible  when   he
     persists  in  violations  of  the  law  after
     conviction of previous infractions.
     
     Carlson,  560  P.2d at 28-29  (footnotes  and
     internal citations and quotations omitted).
          The  supreme  court therefore  held
that  the  increased penalties  provided  for
repeat  offenders under the habitual criminal
statute only applied if the defendants  later
offense  was  committed after  judgement  was
entered  on  the  defendants  prior  offense.
Carlson,  560  P.2d at 30.  In  other  words,
where the sequence of prior convictions is in
issue,  the  rule ... is that each successive
felony  must be committed after the  previous
felony  conviction in order to count  towards
habitual criminal status.  Id. at 29.
          The   court  explained   that   the
harsher  penalties  of the habitual  criminal
statute were intended to be applied in  cases
where  a  convicted criminal  has  not  taken
advantage  of the opportunity to  reform  and
subsequently commits another crime.   Id.  at
30.   In Davenports case, because two of  his
convictions were entered on the same day, the
opportunity  for reformation  [stemming  from
those  convictions was] afforded to him  only
once,   not  twice.   Id.   Thus,  the  court
concluded, even though Davenport  had  (as  a
factual   matter)  committed  three  felonies
before  he committed his current offense,  he
should  have been sentenced under  subsection
(2)  of the statute  the subsection that  set
forth  the  penalty  range  for  a  defendant
previously  ...  convicted of  two  felonies.
Id.
          The following year, in Gonzales  v.
State,  582 P.2d 630, 636 (Alaska 1978),  the
supreme  court  applied  this  same  rule  of
construction   to  former  AS  17.10.200,   a
statute  which  imposed  increasingly  severe
penalties  on  drug offenders  for  a  second
offense   and  for  a  third  or   subsequent
offense.
          We  now  return  to  the  statutory
language  at  issue  in  Wooleys  case:   the
language  found in AS 11.46.130(a)(6),  which
defines  a  repeat theft offender as  someone
who  has been convicted and sentenced on  two
or more separate occasions for first-, second-
,  or third-degree theft within the preceding
5 years.
          If  the phrase sentenced on two  or
more  separate  occasions  was  intended   to
codify  the Carlson rule  and, on  its  face,
the  language  appears to be consistent  with
that  rule   then  Wooleys  two  prior  theft
convictions  would not support a  prosecution
or   conviction   for  felony   theft   under
AS  11.46.130(a)(6).  Within the  five  years
preceding  his  current offense,  Wooley  has
been  sentenced  only once for  theft.   (The
judgements  for his previous two thefts  were
both  entered on the same day.)   Thus,  like
the  defendant  in Carlson, Wooley  has  only
once, and not twice, failed to take advantage
of an opportunity for reformation.
          But  the  situation is  complicated
because two more recent Alaska statutes  that
is,  two  statutes passed after  the  Carlson
decision   have been interpreted as codifying
a  different rule for assessing a  defendants
status as a repeat offender.
          In  January  1980, Alaskas  current
criminal code took effect.7  In place of  the
habitual  felony offender statute (which  was
repealed),   the   legislature   enacted    a
presumptive  sentencing scheme that  subjects
defendants  to  increasing presumptive  terms
(or,  now,  increasing presumptive ranges  of
imprisonment)  if  the  defendant  is   being
sentenced for a second felony conviction or a
third  felony conviction as those  terms  are
defined in AS 12.55.185.
          Under  this statute, second  felony
conviction    means   that   the    defendant
previously  has been convicted of a  felony,8
and  third felony conviction means  that  the
defendant  has been at least twice previously
convicted   of  a  felony.9   In   State   v.
Rastopsoff, 659 P.2d 630 (Alaska App.  1983),
this  Court had to decide whether the wording
of  the  new presumptive sentencing  statute,
twice   previously  convicted  of  a  felony,
should be interpreted in conformity with  the
Carlson  rule   that  is,  whether  this  new
language should be interpreted as meaning the
same  thing  as  the  phrase  previously  ...
convicted  of two felonies that  appeared  in
the old habitual criminal statute.
          In  Rastopsoff, this Court  engaged
in   a  lengthy,  detailed  analysis  of  the
language,  statutory history, and legislative
commentary   accompanying   the   presumptive
sentencing  statutes.  See 659 P.2d  at  635-
640.   Based  on this analysis, we  concluded
that the presumptive sentencing statutes were
intended to codify a modified version of  the
Carlson rule.
          We   held   that,  under  the   new
sentencing   statutes,  a  defendants   prior
felony convictions could not be used to alter
the  defendants presumptive sentencing status
unless  the defendants current felony offense
was   committed   after  the  defendant   was
sentenced    for   the   previous   felonies.
Rastopsoff, 659 P.2d at 640-41.  This  aspect
of the new statutes was a continuation of the
Carlson rule.  However, we held that the  new
sentencing statutes departed from the Carlson
rule  in that the new statutes required proof
of   only   one   earlier   opportunity   for
reformation.    Thus,  if  a  defendant   was
sentenced  at  a  single proceeding  for  two
separate  felonies (as defined in  AS  12.55.
145(a)),  and  if  the  defendant  thereafter
committed  another felony, this later  felony
          would be deemed the defendants third felony
conviction.  Id. at 640.
          Four  years  after  Rastopsoff,  in
Tulowetzke v. Division of Motor Vehicles, 743
P.2d  368  (Alaska 1987), the Alaska  Supreme
Court   applied   the  Rastopsoff   rule   of
construction  to AS 28.15.181(c),  a  statute
that  specifies increasing mandatory  minimum
periods  of  license revocation  for  drivers
convicted  of  driving under  the  influence,
depending  on  whether the  driver  has  been
previously   convicted  once  or   previously
convicted twice or previously convicted  more
than twice.
          AS 28.15.181(c) does not define the
phrase  previously convicted, but the supreme
court  concluded that this phrase  should  be
interpreted  to mean the same  thing  as  the
corresponding   phrase  in  the   presumptive
sentencing statutes that this Court construed
in  Rastopsoff.   The supreme  court  reached
this  conclusion because both  statutes  deal
with  the  same  problem  (recidivism),  both
statutes   were  enacted  during   the   same
legislative session (1978), and both statutes
employ  essentially  the  same  language   to
describe  the  recidivist offenders  who  are
subject    to    the   increased   penalties.
Tulowetzke, 743 P.2d at 370.
          The  supreme court noted  that,  in
Rastopsoff,  we interpreted this language  to
mean  that prior convictions which  [do]  not
arise  out of the same criminal episode  must
[later] be counted separately for presumptive
sentencing  purposes, even if the convictions
were  entered  on the same day.   Tulowetzke,
743  P.2d  at  371.  The supreme  court  then
declared, We agree with the court of  appeals
analysis ... and [we] apply the same analysis
to  AS  28.15.181(c).  Thus, ...  all  [of  a
defendants]  prior  DWI convictions  must  be
counted    separately   for    purposes    of
[determining  the  minimum]  drivers  license
revocation following a subsequent conviction,
regardless  of whether the prior  convictions
were entered simultaneously.  Id.

Why we interpret the statutory phrase convicted and
sentenced  on  two or more separate  occasions  as
embodying the rule of State v. Carlson

     Because  the  decisions  in  Rastopsoff   and
Tulowetzke departed from the rule adopted  earlier
in  Carlson, we are confronted with two  competing
rules  of  statutory interpretation for  resolving
the   question  presented  in  Wooleys  case   the
question of who can be prosecuted for felony theft
as a third offender under AS 11.46.130(a)(6).
     Under  the  Carlson rule, Wooley  is  only  a
second   offender,  and  his   two   prior   theft
convictions  count as only one.  Wooley  committed
both  of  the prior thefts before he was sentenced
on  either  of  them.  Thus, Wooley had  only  one
opportunity  for reformation before  he  committed
his  current  offense.  But under the  Rastopsoff-
Tulowetzke   rule,   this  one   opportunity   for
reformation  is  all  that is  required.   Because
Wooley  committed  another theft  after  receiving
this opportunity for reformation, and because  his
two   prior   convictions  arise   from   separate
incidents,  his two prior convictions are  counted
separately and he is a third offender.
          (We  note that, conceivably, there is a third
way  to  interpret the phrase sentenced on two or  more
separate  occasions.  This language might  be  read  as
describing  neither the Carlson rule nor the Rastopsoff
rule,  but  rather all situations where the sentencings
on  a  defendants  prior  theft  offenses  occurred  on
different days  or even at different times on the  same
day,  if the sentencings were separated by a recess  of
any  duration.   The  State  does  not  argue  that  AS
11.46.130(a)(6) should be interpreted in this manner.)
          The State argues that we should interpret  AS
11.46.130(a)(6)  in  conformity  with  the  Rastopsoff-
Tulowetzke rule because that was the prevailing rule in
1988,  when the legislature added subsection (a)(6)  to
AS  11.46.130.   This argument would have  considerably
more  force  if the legislature had written  subsection
(a)(6)  using  the  same phrase, previously  convicted,
that  was construed in Rastopsoff and Tulowetzke.   But
subsection (a)(6) uses a different formula:   convicted
and sentenced on two or more separate occasions.
          The  States  position is further weakened  by
the fact that the original version of subsection (a)(6)
House  Bill 461, 15th Legislature  did contain  wording
similar  to  the  statutes at issue in  Rastopsoff  and
Tulowetzke.  As originally proposed, subsection  (a)(6)
would  have authorized felony prosecution of what would
otherwise  be  a  misdemeanor  theft  if,  within   the
preceding five years,
     
     [the  defendant] has been convicted three  or
     more  times  [of first-, second-,  or  third-
     degree  theft]  or  an  offense  [in  another
     jurisdiction] under another law or  ordinance
     with substantially similar elements.
     
     See  House Bill 461 (15th Legislature), draft
     of February 29, 1988 (emphasis added).
               But  at  some  point  between  late
     February and mid-March 1988, the language  of
     House  Bill  461  was changed from  convicted
     three   or   more  times  to  convicted   and
     sentenced  on two or more separate occasions.
     See  House Bill 461, draft of March 17,  1988
     (emphasis added).
          House  Bill 461 was the subject  of
considerable   legislative   discussion   and
public comment, but none of the discussion or
comment   addressed  this   change   in   the
statutory  language.  The legislative  record
(the  committee  minutes, the  internal  memo
randa,  and  other  pertinent  documentation)
offers  no  explanation, either  explicit  or
implicit, for this alteration of the  formula
for  determining  which defendants  would  be
subject  to  felony  prosecution  as   repeat
offenders.
          The  State argues that this  silent
record  supports  the  conclusion  that   the
legislature  did  not think they  were  doing
anything  remarkable   and  thus  we   should
interpret the silent record to mean that  the
legislature thought the new statute would  be
construed in the same manner as the  statutes
at issue in Rastopsoff and Tulowetzke.
          But  there  are  other  conclusions
that  might reasonably be drawn.   Here,  the
legislature   started  out   with   statutory
language  similar  to the language  that  had
been    previously   construed   under    the
Rastopsoff-Tulowetzke  rule   and  then   the
legislature replaced this language with a new
formula  that, at least facially, appears  to
codify the Carlson rule.
          Moreover, the legislature  did  not
simply  change  the statutory description  of
the   predicate   prior   convictions.    The
legislature  also changed the minimum  number
of  prior convictions that would trigger  the
higher  degree  of  offense   reducing   this
minimum number from three to two.
          When   these   two   changes    are
considered     together,    one    reasonable
conclusion is that the legislature  initially
intended  to  require proof  of  three  prior
convictions  under  the Rastopsoff-Tulowetzke
rule,  and  then the legislature changed  its
mind  and  decided  to  reduce  the  required
number   of   prior   convictions,   but   to
concomitantly  require the State  to  satisfy
the  Carlson rule.  In other words, under the
initial  language, the State  would  have  to
prove  that the defendant had at least  three
prior  theft convictions, but the State would
only  have to prove that the defendant had  a
single  prior  opportunity to reform.   Under
the  amended language, the State  would  only
have  to  prove two prior theft  convictions,
but  the  State would have to prove that  the
defendant  had  a  separate  opportunity   to
reform after each of those convictions.
          The  language of AS 11.46.130(a)(6)
is fully consistent with this interpretation.
Indeed,  the statutory language is  seemingly
inconsistent   with   the   States   contrary
interpretation.
          Finally,  we  note  that  in  1996,
eight  years  after  the legislature  enacted
AS  11.46.130(a)(6), the legislature  enacted
another  recidivist  statute  that  expressly
codifies  the Carlson rule as the method  for
determining   which   offenders   should   be
subjected   to   increased   penalties    for
recidivism.  See SLA 1996, ch. 7,  7-8.
          Section  7  of  this  session   law
enacted  AS 12.55.125(l), which provides  for
greatly   increased  penalties  for   certain
repeat felony offenders:

     Notwithstanding any other  provision  of
law,  a  defendant [who is] convicted  of  an
unclassified  or class A felony offense,  and
[who  is] not subject to a mandatory  99-year
sentence  under [AS 12.55.125(a)],  shall  be
sentenced  to a definite term of imprisonment
of  99  years  when  the defendant  has  been
previously  convicted of  two  or  more  most
serious felonies.

          This is a modern-day version of the
old   habitual  criminal  statute  that   was
construed  in  Carlson, and  the  legislature
declared  that the goals of this new  statute
were  to (1) improve public safety by placing
the   most  dangerous  criminals  in  prison;
(2)  reduce  the  number of  serious,  repeat
offenders  by  tougher  sentencing;  (3)  set
proper  and  simplified sentencing  practices
that  both  victims and persistent  offenders
can  understand; and (4) restore public trust
in   our   criminal   justice   system    all
traditional  goals  of  recidivist   offender
statutes.  See SLA 1996, ch. 7,  1.
          From  an appellate judges point  of
view  (and from a sentencing judges point  of
view),   the   wording  of  AS   12.55.125(l)
immediately raises the question:  How  do  we
determine  whether  a  defendant   has   been
previously  convicted of  two  or  more  most
serious    felonies?     Fortunately,     the
legislature  provided  the  answer  to   this
question  in  section 8 of the  session  law.
This section enacted AS 12.55.145(a)(2)(B)  a
statute  that surely ranks among the paragons
of legislative clarity:
     
     For   purposes   of  considering   prior
convictions in imposing sentence under ... AS
12.55.125(l),
     .  .  .

          (B)  commission  of and  conviction
     for  offenses  relied on as  prior  most
     serious  felony offenses must  occur  in
     the  following order:  [the]  conviction
     for  the first offense must occur before
     [the]  commission of the second offense,
     and  [the]  conviction  for  the  second
     offense   must   occur   before    [the]
     commission of the offense for which  the
     defendant is being sentenced[.]

          This is the Carlson rule, expressed
in   plain  English.   In  other  words,  the
legislature codified the Carlson rule as  the
method  for  determining which repeat  felony
offenders  will be subject to  the  increased
penalties specified in AS 12.55.125(l).
          Given  all  of this, the best  that
can   be   said  for  the  States   suggested
interpretation of AS 11.46.130(a)(6) is  that
this   interpretation  is   debatable.    The
wording of the statute appears to be contrary
to  the States proposed interpretation.   The
legislative record is silent as to  what  the
legislature intended, but it is obvious  that
the  legislature started out with a  phrasing
that  was  similar to the language  that  had
previously   been  judicially  construed   in
Rastopsoff  and  Tulowetzke,  and  then   the
legislature dropped this language in favor of
a  new  formula.  And, finally, we note  that
the  legislature has adopted and codified the
Carlson  test in a related context  that  is,
in   a   statute  that  calls  for  increased
penalties for recidivist offenders.
          When the meaning of a penal statute
remains  ambiguous or unclear  after  it  has
been  subjected  to legal analysis,  the  law
requires  us to construe the statute  against
the  government.10  Accordingly, we now  hold
that  AS  11.46.130(a)(6) must be interpreted
in  accordance  with  the  Carlson  rule.   A
defendant  can  not be convicted  under  this
          subsection unless, within the five years
preceding the defendants current offense, (1)
the   defendant  was  sentenced  for  first-,
second-, or third-degree theft, and then  (2)
the   defendant  committed  another   first-,
second-,  or  third-degree  theft   and   was
sentenced  for that theft, and then  (3)  the
defendant committed the current theft.

The proper disposition of Wooleys case

     One further issue remains to be resolved.
     In   Wooleys   petition  for  post-conviction
relief in the superior court, he asserted that  he
could  not  lawfully be convicted of felony  theft
under  AS 11.46.130(a)(6), and he therefore  asked
the   superior  court  to  set  aside  his  felony
conviction   and  to  reduce  his  conviction   to
misdemeanor  theft, with a maximum sentence  of  1
years imprisonment.
     We  have  now  concluded that, as  a  factual
matter,  the  State  could not  have  successfully
prosecuted   Wooley   under   AS   11.46.130(a)(6)
because  Wooley committed his second prior offense
before  he  was  sentenced  for  the  first  prior
offense.  However, this does not mean that  Wooley
is entitled to the relief that he asked for.
     As  we explained toward the beginning of this
opinion,     Wooleys    conviction    under     AS
11.46.130(a)(6) was the result of a plea  bargain.
Wooley  pleaded no contest to felony  theft  under
this  statute in exchange for the States dismissal
of  two other charges  an alleged attempted  theft
and an alleged act of witness tampering.
          Even  assuming that Wooley entered  his  plea
without any inkling that he might have a defense to the
felony  theft  charge,  the fact  remains  that  Wooley
negotiated a plea agreement with the government and  he
obtained  concessions (the dismissal of other  criminal
charges)  as  part  of  that bargain.   Wooley  is  not
entitled  to claim the benefit of the portions  of  the
agreement  that  he  likes while,  at  the  same  time,
mounting  an  attack on the portions that he  does  not
like.
          When,  as in Wooleys case, a defendant wishes
to  challenge an already consummated plea agreement  as
being  unlawful, or as being the result of  incompetent
advice  received  from  the  defendants  attorney,  the
defendant  must seek rescission of the  agreement   not
selective   enforcement   of  only   those   provisions
favorable  to  the  defendant.   We  addressed  similar
situations  in  Woodbury v. State, 151  P.3d  528,  532
(Alaska  App. 2007), and in Grasser v. State, 119  P.3d
1016, 1018 (Alaska App. 2005).
          Accordingly, we REMAND Wooleys  case  to  the
superior court.  In the superior court, Wooley shall be
given  the opportunity to renew his petition for  post-
conviction relief  with the understanding that,  if  he
is  successful, his remedy is not to have the  superior
court reduce his theft conviction to a misdemeanor, but
rather to be allowed to withdraw his no contest plea to
the  felony  theft  charge  and  to  have  the  parties
returned to their respective positions before the  plea
bargain,  including reinstatement of the other criminal
charges  that the State dismissed as part of  the  plea
bargain.
          We do not retain jurisdiction of this case.

_______________________________
1 Former AS 12.55.050 declared:

Increased punishment for persons convicted of more than  one
felony.   A  person convicted of a felony in this state  who
has  been previously convicted of a felony in this state  or
elsewhere,  if the same crime elsewhere would  constitute  a
felony under Alaska law, is punishable as follows:

(1)  If the person ... has previously been convicted of  one
felony,  then he is punishable by imprisonment for not  less
than  the  minimum  nor  more than twice  the  longest  term
prescribed  for  the felony of which that person  [currently
stands] convicted.

(2)  If  the  person has previously been  convicted  of  two
felonies, then he is punishable by imprisonment for not less
than  the  minimum  nor  more than twice  the  longest  term
prescribed  [in subsection (1)] for a second  conviction  of
felony.

(3) If the person has previously been convicted of three  or
more  felonies, then on the fourth conviction  he  shall  be
adjudged   an  habitual  criminal,  and  is  punishable   by
imprisonment  for not less than 20 years nor more  than  the
remainder of his natural life.

2 Carlson, 560 P.2d at 27.

3 Id.

4 Id.

5 Id. at 28.

6 Id.

7The new criminal code and the new presumptive sentencing
laws took effect on January 1, 1980.  See SLA 1978, ch.
166,  25.

8AS 12.55.185(14).

9AS 12.55.185(17).

10  Haywood v. State, 193 P.3d 1203, 1206 (Alaska App. 2008);
State  v.  ABC  Towing, 954 P.2d 575, 579 (Alaska  App.
1998).

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC