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Alexie v. State (4/30/2010) ap-2260

Alexie v. State (4/30/2010) ap-2260

                             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
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                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DERRICK M. ALEXIE,                 
                                   
                    Appellant,       Court of Appeals No. A-10091
                                    Trial Court No. 4BE-06-1601 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                        No. 2260    April 30, 2010
                                   
          Appeal  from the Superior Court, Fourth  Judi
          cial  District, Bethel, Marvin Hamilton  III,
          Judge.

          Appearances:   David  D.  Reineke,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Douglas   H.   Kossler,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and Daniel S.  Sullivan,
          Attorney General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          Derrick  M.  Alexie pleaded no contest to  first-degree
assault   under   
subsection (a)(1) of AS 11.41.200 the provision of the statute that forbids recklessly caus[ing] serious physical injury to another by means of a dangerous instrument.
First-degree assault is a class A felony,1 and sentencing for this offense is governed by AS 12.55.125(c). Because Alexie was a first felony offender, his sentencing was governed by the following two subsections of this statute:
(1) if the offense ... does not involve circumstances described in [paragraph] (2) ... , [the presumptive sentencing range is] five to eight years;
(2)  if  ...  the
          defendant   possessed  a  firearm,   used   a
          dangerous   instrument,  or  caused   serious
          physical   injury   or   death   during   the
          commission   of   the   offense,   ...   [the
          presumptive sentencing range is] seven to  11
          years[.]
          
                    By  entering a no contest  plea  to
          first-degree assault under subsection  (a)(1)
                    of AS 11.41.200, Alexie necessarily conceded
          (at  least for sentencing purposes)  that  he
          caused  serious  physical injury  to  another
          person.    Thus,   Alexies   sentencing   was
          apparently  governed by paragraph (2)  quoted
          above,   and   the   applicable   presumptive
          sentencing   range  was   7   to   11   years
          imprisonment.
                    But     in    his    pre-sentencing
          memorandum, Alexie took the position that his
          sentencing   was  governed   by   the   lower
          presumptive  sentencing  range  specified  in
          paragraph  (1)  the range of 5  to  8  years.
          The superior court rejected this argument and
          ruled  that Alexie was subject to the  higher
          sentencing  range.  Alexie now  appeals  that
          decision.
                    In  support of the proposition that
          the   lower   presumptive  sentencing   range
          applies  to his case, Alexie relies  on  this
          Courts decision in Pruett v. State, 742  P.2d
          257 (Alaska App. 1987).
          In Pruett, this Court construed the
pre-March  2005 version of the two paragraphs
quoted above, AS 12.55.125(c)(1) and (2).  At
that  time,  these  two paragraphs  read  (in
pertinent part):

     (1)  if the offense ... does not involve
circumstances  described in  [paragraph]  (2)
... , [the presumptive term is] five years;

     (2)  if the [defendants] conviction [is]
other   than  for  manslaughter[,]  and   the
defendant   possessed  a  firearm,   used   a
dangerous   instrument,  or  caused   serious
physical injury during the commission of  the
offense, ... [the presumptive term is]  seven
years[.]

          These    two    former   sentencing
provisions  presented a  paradox:   A  7-year
presumptive   term  applied   to   defendants
convicted   of  first-degree  assault   under
AS  11.41.200(a)(1)  that is, defendants  who
recklessly caused serious physical injury  to
another   person  by  means  of  a  dangerous
instrument.   But  a lower  presumptive  term
the  5-year  term specified in paragraph  (1)
applied    to   defendants   who    committed
manslaughter  by  recklessly killing  another
person   (since   paragraph   (2)   expressly
excluded manslaughter convictions from the 7-
year presumptive term).
          In  Pruett,  742 P.2d  at  263,  we
acknowledged   that   it  was   theoretically
possible to commit manslaughter without using
a  dangerous  instrument,  but  we  concluded
that,  as  a  practical matter,  a  dangerous
instrument would be involved in virtually all
manslaughters.
          We  also  noted that, for the  same
reason,  there  was only  a  very  thin  line
between   first-degree   assault   under   AS
11.41.200(a)(1)   (reckless   infliction   of
serious  physical  injury  by  means   of   a
dangerous instrument) and the class B  felony
of    second-degree    assault    under    AS
11.41.210(a)(2)   (reckless   infliction   of
serious  physical injury).   We  acknowledged
that  it  was  possible to  recklessly  cause
serious  physical  injury  without  using   a
dangerous   [instrument],  but  we  concluded
that, given the broad definition of dangerous
instrument  in  AS  11.81.900(b),   such   an
occurrence was unlikely.  Id.
          Based on the foregoing, we held  in
Pruett  that, despite the literal wording  of
AS  12.55.125(c)(1) and (2), the  legislature
did    not   intend   the   larger   [7-year]
presumptive  term  to  apply  to  a  reckless
infliction  of serious physical injury,  even
when   the  injury  was  inflicted   with   a
dangerous   instrument    because   it    was
illogical to apply a 7-year presumptive  term
to those who recklessly commit assault in the
first degree, but only a [5]-year presumptive
term    to   those   who,   under   identical
circumstances,  kill their victim.   Id.   We
concluded  that  the  legislature  must  have
intended  the  5-year  presumptive  term   to
govern   the   sentencing  of  first   felony
offenders  convicted of first-degree  assault
under AS 11.41.200(a)(1).
          In  2005 (almost twenty years after
our  decision  in  Pruett),  the  legislature
enacted   substantial   amendments   to    AS
12.55.125.  As part of these amendments,  the
legislature     made    changes     to     AS
12.55.125(c)(1) and (2).
          For  purposes of Alexies case,  the
two  pertinent changes are found in paragraph
(2).   First,  the  legislature  deleted  the
language     that    exempted    manslaughter
convictions   from  the  higher   presumptive
sentencing range specified in paragraph  (2).
Second,  the legislature added the  words  or
death  to  the  list  of  circumstances  that
trigger   the   higher   presumptive    range
specified   in   paragraph  (2).    We   have
italicized this change in the wording:

     (2)  if  ...  the defendant possessed  a
firearm,  used  a  dangerous  instrument,  or
caused  serious  physical  injury  or   death
during  the  commission of the  offense,  ...
[the  presumptive sentencing range is]  seven
to 11 years[.]

          Because of these two amendments  to
AS  12.55.125(c)(2), the  higher  presumptive
sentencing   range   of   7   to   11   years
imprisonment specified in paragraph  (2)  now
applies   to   all  first  felony   offenders
convicted  of a class A felony in  which  the
defendant caused the death of another  person
during   the   commission  of  the   offense.
In other words, this higher presumptive range
applies   to   all  first  felony   offenders
convicted of manslaughter.
          Thus, under the current version  of
AS 12.55.125(c)(1)  (2), the same presumptive
sentencing  range  7 to 11 years imprisonment
applies  both to defendants who are convicted
of   first-degree  assault  under  AS  11.41.
200(a)(1)  for recklessly inflicting  serious
physical injury on another person by means of
a  dangerous instrument and to defendants who
are   convicted  of  manslaughter  under   AS
11.41.120(a) for recklessly causing the death
of another person.
          In  his brief to this Court, Alexie
argues that the reasoning of Pruett continues
to  apply  to  the  amended statute.   Alexie
contends  that, just as it was illogical  for
the    legislature   to   provide   a   lower
presumptive term for defendants convicted  of
manslaughter   (as  opposed   to   defendants
convicted  of reckless first-degree assault),
it  is  equally illogical for the legislature
to   now   provide   the   same   presumptive
sentencing  range  for these  two  groups  of
defendants.
          As   examples   of  the   purported
illogic of the current sentencing provisions,
Alexie  points  out  that  a  defendant   who
recklessly   uses  (or  misuses)   a   loaded
firearm, causing it to discharge, would  face
the same presumptive sentencing range whether
the  bullet seriously injured the  victim  or
killed the victim.
          Alexie  further points out  that  a
defendant  who  recklessly  used   a   loaded
firearm and seriously injured another  person
(and  was therefore convicted of first-degree
assault   under  subsection  (a)(1)   of   AS
11.41.200)  would  face the same  presumptive
sentencing   range   as   a   defendant   who
intentionally caused serious physical  injury
to  another person by means of a firearm (and
was   therefore  convicted  of   first-degree
assault  under  subsection  (a)(2)   of   the
statute).
          We  acknowledge  that  most  people
would  view  the reckless killing of  another
person  as  a more serious offense  than  the
reckless   injuring   of   another    person.
Similarly, most people would view the act  of
intentionally injuring another  person  as  a
more   serious  offense  than  the   act   of
recklessly  injuring  another  person.    But
under the amended version of AS 12.55.125(c),
the  legislature  has not provided  a  lesser
penalty   for  the  apparently  more  serious
offenses.    Rather,  the   legislature   has
provided the same penalty.
          In  our view, this is a significant
difference.   Under our system of government,
it is the legislature, and not the judiciary,
which establishes the punishment or range  of
punishments  for a particular  offense.2   As
our  supreme court stated in Alex  v.  State,
484 P.2d 677, 685 (Alaska 1971), Save only as
limited by constitutional safeguards, ... the
comparative  gravity of  offenses  and  their
classification  and resultant  punishment  is
for   legislative  determination.   For  this
reason,   generally  speaking,   a   criminal
defendant  can not challenge the legislatures
assessment of the proper penalty range for  a
particular  offense.  State  v.  Morgan,  111
P.3d 360, 365 (Alaska App. 2005).
          Our  criminal code provides several
examples of offenses that can be committed in
several distinct ways, and where people might
reasonably  differ as to whether the  various
types of conduct specified in the statute all
deserve the same punishment.
          For      example,     under      AS
11.41.220(a)(1)(B), a person  commits  third-
degree  assault  if  they  recklessly   cause
physical injury to another person by means of
a  dangerous instrument.  Thus, a person  who
recklessly  handles a knife and cuts  another
person  (even slightly) is guilty  of  third-
degree  assault under this subsection of  the
statute.  On the other hand, under subsection
(a)(2)  of the same statute, a person commits
the  same  offense, third-degree assault,  if
they  make repeated threats to kill or injure
          another person with the intent of placing
another  person in fear for themselves  or  a
family member.
          Reasonable  people  might  conclude
that   these   two  acts  are   significantly
different,   and   that   they    call    for
significantly  different  punishments.    But
under our system of government, that decision
is  up to the legislature.  A court has  only
limited  authority to alter the  legislatures
determination.
          In Pruett, we confronted the former
version of AS 12.55.125(c), which created  an
apparently  senseless  sentencing  disparity:
defendants   who,   through   an    act    of
recklessness,   seriously   injured   another
person  were  subject to a 7-year presumptive
term,  while other defendants who engaged  in
identical conduct but who caused the death of
another  person were subject to a lesser,  5-
year  presumptive  term.  We  concluded  that
this   result  was  so  illogical  that   the
legislature  simply could not  have  intended
it:

[W]e conclude that the legislature could  not
have intended the seven-year presumptive term
to  apply  to  those  who  recklessly  commit
assault  in  the  first degree,  but  only  a
five-year  presumptive  term  to  those  who,
under  identical  circumstances,  kill  their
victim.   See Sherman v. Holiday Construction
Co.,  435 P.2d 16, 19 (Alaska 1967) (statutes
should be construed to avoid absurd results).
We  therefore  conclude that the  legislature
intended  that  Pruett  and  those  similarly
situated  would be subject to  the  five-year
presumptive  term rather than the  seven-year
presumptive term.

Pruett, 742 P.2d at 263.
          In other words, we did not overrule
the  legislatures determination, nor  did  we
declare    the    statute   unconstitutional.
Rather,   we   attempted  to  implement   the
legislatures  intent, after  concluding  that
the   legislature  simply  could   not   have
intended the statute to be applied in the way
that  the  words  of  the  statute  literally
called for.
          In  Alexies  case,  we  confront  a
different  situation.   AS  12.55.125(c)   no
longer  calls  for  a  lesser  sentence   for
defendants  whose  reckless criminal  conduct
results   in  more  blameworthy  consequences
(death  of  another  person,  as  opposed  to
serious   physical  injury).    Rather,   the
statute   now   declares   that   the    same
presumptive sentencing range applies to  both
groups of defendants.
          Moreover, as we explained  earlier,
in  2005  the legislature amended  subsection
(c)(2) of the statute so that it now includes
the  words or death.  Under the amended  form
of  the statute, the higher presumptive range
of  7  to 11 years imprisonment now expressly
applies  to first felony offenders  convicted
of  a  class A felony if they caused  serious
physical  or  death during the commission  of
the  offense.   This  demonstrates  that  the
legislature made a deliberate choice to apply
the  same  presumptive  sentencing  range  to
first  felony offenders convicted  of  either
first-degree assault (i.e., those  who  cause
serious   physical  injury)  or  manslaughter
(i.e., those who cause death).
          Reasonable people might disagree as
to   the  desirability  or  wisdom  of   this
sentencing  framework.  But  this  sentencing
framework  does  not  lead  to  the  type  of
inexplicable sentencing disparity that  would
allow  us  to  say  with  assurance  that  no
reasonable  legislature could  have  intended
AS 12.55.125(c) to be interpreted this way.
          Accordingly,  we  hold  that  first
felony   offenders  like   Alexie   who   are
convicted  of first-degree assault  under  AS
11.41.200(a)(1)   (reckless   infliction   of
serious  physical  injury  by  means   of   a
dangerous instrument) are subject to  the  7-
to   11-year  presumptive  sentencing   range
specified in AS 12.55.125(c)(2).
          The judgement of the superior court
is AFFIRMED.

_______________________________
  1 AS 11.41.200(b).

2See, e.g., Beltz v. State, 980 P.2d 474, 480 (Alaska App.
1999).

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