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Sikeo v. State (7/1/2011) ap-2315

Sikeo v. State (7/1/2011) ap-2315

                                                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 

XEUY SIKEO, 
                                                             Court of Appeals No. A-10558 
                                Appellant,                  Trial Court No. 3AN-08-5125 Cr 

                        v. 
                                                                     O   P  I  N  I  O  N 
STATE OF ALASKA, 

                                Appellee.                       No. 2315    -   July 1, 2011 

                Appeal     from    the  Superior    Court,   Third    Judicial  District, 
                Anchorage, Eric A. Aarseth, Judge. 

                Appearances: Doug Miller, Assistant Public Advocate (opening 
                brief),   Robert   Lee   Griffin,   Assistant   Public   Advocate   (reply 
                brief), and Rachel Levitt, Public Advocate, Anchorage, for the 
                Appellant.    Tamara   E.   de   Lucia,   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. 

                Xeuy Sikeo had sexual intercourse with the 11-year-old daughter of his 

girlfriend.     The    girl   became   pregnant   and    later  gave   birth  to  a  baby   (which    she 

----------------------- Page 2-----------------------

relinquished for adoption).       DNA testing confirmed that Sikeo was the father of this 

baby. 

                Based on this conduct, Sikeo was convicted of first-degree sexual abuse of 

a minor.   Because Sikeo had two prior convictions for attempted second-degree sexual 

abuse of a minor, his sentencing was governed by AS 12.55.125(i)(1)(F).                 This statute 

prescribes a 99-year presumptive term of imprisonment for defendants convicted of first- 

degree sexual abuse of a minor if the defendant has two or more prior convictions for any 
of   the  sexual   felonies   listed  in  AS   12.55.185(16). 1     Sikeo    in  fact  received    this 

presumptive 99-year term. 

                In this appeal, Sikeo contends that the 99-year presumptive term prescribed 

by AS 12.55.125(i)(1)(F) is so disproportionate to his offense that it constitutes "cruel 

and unusual punishment" under the Eighth Amendment to the United States Constitution 

and under Article I, Section 12 of the Alaska Constitution. 

                Sikeo's    contention    rests  on   two   underlying    assertions    about   Alaska 

sentencing law. 

                Sikeo's first underlying assertion concerns the nature of the 99-year term 

of imprisonment specified for defendants who, like Sikeo, are convicted of first-degree 

sexual abuse of a minor and have at least two prior convictions for sexual felonies.  Sikeo 

asserts that this term of imprisonment is a "mandatory" 99-year term.  As we explain in 

this   opinion,   this  characterization    is  incorrect.   The     99-year   term   prescribed    by 

    1   AS 12.55.185(16) defines "sexual felony" for these purposes as:            sexual assault in 

either the first, second, or third degree; sexual abuse of a minor in either the first or second 
degree;    incest;  unlawful   exploitation   of  a  minor;   distribution  or  possession   of  child 
pornography; and indecent exposure in the first degree - as well as any felony-level attempt, 
conspiracy, or solicitation to commit any of these crimes. 

                                                - 2 -                                             2315 

----------------------- Page 3-----------------------

AS 12.55.125(i)(1)(F) is a "presumptive" term of imprisonment, not a "mandatory" term 

of imprisonment. 

                 Sikeo's   second   underlying   assertion   is   that   the   proportionality   of   this 

presumptive term of imprisonment should be assessed by comparing it to the penalty 

range for a first felony offender convicted of murder.  For the reasons explained here, we 

disagree with this assertion as well.          We conclude that the proper point of comparison 

is   the 99-year mandatory term of imprisonment specified in AS 12.55.125(l) for all 

defendants who are convicted of a third unclassified or class A felony. 

         Sikeo's argument that he faced a mandatory 99-year sentence 

                 Sikeo asserts that, under the terms of AS 12.55.125(i)(1)(F), he faced a 

"mandatory" 99-year sentence.             This is incorrect.      The 99-year term of imprisonment 

specified in AS 12.55.125(i)(1)(F) is not a mandatory minimum term of imprisonment, 

but rather apresumptive term of imprisonment. (We discussed this distinction Soundara 

v. State, 107 P.3d 290, 300 (Alaska App. 2005), and in Clark v. State, 8 P.3d 1149, 1150 

51 (Alaska App. 2000).) 

                 Here are the relevant provisions of AS 12.55.125(i): 

                         A defendant convicted of ... sexual abuse of a minor in 
                 the   first   degree   ...   may   be   sentenced   to   a   definite   term   of 
                 imprisonment         of  not   more    than    99   years   and    shall  be 
                 sentenced to a definite term within the following presumptive 
                 ranges, subject to adjustment as provided in AS 12.55.155 - 
                 12.55.175:
 
                          .  .  .
 

                                  (E) if the offense is a third felony conviction 
                          and the defendant is not subject to sentencing under 

                                                    - 3 -                                                2315
 

----------------------- Page 4-----------------------

                         (F) of this paragraph or (l) of this section, 40 to 60 
                         years; [and] 

                                 (F) if the offense is a third felony conviction, 
                         the defendant is not subject to sentencing under (l) of 
                         this    section,    and   the    defendant     has    two    prior 
                         convictions for sexual felonies, 99 years[.] 

                 Under this statute, when a "third felony offender" (that is, a defendant with 

at least two prior felony convictions - see  AS 12.55.185(17)) is convicted of first- 

degree sexual abuse of a minor, the defendant faces a presumptive sentencing range of 

40 to 60 years if their prior felony convictions do not include two prior sexual felonies 

(as defined in AS 12.55.185(16)).             If, on the other hand, the defendant's prior felony 

convictions include two or more sexual felonies, then the presumptive sentencing range 

increases   to   a   presumptive   term   of   99   years.  But   in   either   case,   under   the   express 

language of the opening paragraph of the statute, the defendant's prescribed sentence is 

"subject to adjustment as provided in AS 12.55.155 - 12.55.175". 

                 The sentencing statute's reference to AS 12.55.155 means that the 99-year 

presumptive term can be adjusted by the sentencing judge, pursuant to AS 12.55.155(a), 

for any of the statutory mitigating factors listed in AS 12.55.155(d).                  If the defendant 

proves one or more of these mitigating factors, the sentencing judge has the authority to 

reduce the 99-year term of imprisonment by up to fifty percent. See AS 12.55.155(a)(2): 

                         [I]f   a  defendant    ...  is  subject  to  sentencing     under 
                 AS 12.55.125(c), (d), (e), or (i) and ... the low end of the 
                presumptive   range is more than four years, the court may 
                 impose a sentence below the presumptive range as long as the 
                 active term of imprisonment is not less than 50 percent of the 
                 low end of the presumptive range for factors in mitigation ... . 

                                                   - 4 -                                              2315
 

----------------------- Page 5-----------------------

                The sentencing statute's reference to AS 12.55.165 - 175 means that if the 

statewide three-judge panel concludes that manifest injustice would result from failure 

to consider a non-statutory mitigator when formulating the defendant's sentence, the 

panel has the authority to reduce the defendant's sentence by up to fifty percent of the 
specified 99-year presumptive term based on this non-statutory mitigator. 2                Moreover, 

if the three-judge panel concludes that the prescribed term of imprisonment (even after 

adjustment for mitigators) is manifestly unjust, the panel can sentence the defendant to 

any term of imprisonment within the 0- to 99-year range specified in AS 12.55.125(i)(1). 
See AS 12.55.175(c). 3 

                We acknowledge that when defendants like Sikeo are sentenced as repeat 

sexual   offenders   under   AS   12.55.125(i)(1)(F),   they   are   not   eligible   for   good   time 
credit. 4 And because these defendants do not earn good time credit, they never become 

eligible to apply for discretionary parole unless the three-judge sentencing panel has 
expressly made them eligible for parole. 5  Thus, these defendants will normally serve the 

    2   See State v. Price, 740 P.2d 476, 482 (Alaska App. 1987). 

    3   For the sake of accuracy, we note that AS 12.55.175(e) imposes a limitation on the 

three-judge panel's sentencing authority if the panel's conclusion of manifest injustice is 
based on the non-statutory mitigator of "exceptional potential for rehabilitation". 

    4   See AS 33.20.010(a)(3):       "[A] prisoner convicted of an offense ... and sentenced to 

a term of imprisonment that exceeds three days is entitled to a deduction of one-third of the 
term of imprisonment[,] rounded off to the nearest day[,] if the prisoner follows the rules of 
the correctional facility in which the prisoner is confined.          [However, a] prisoner is not 
eligible for a good time deduction if the prisoner has been sentenced ...          for a sexual felony 
under AS 12.55.125(i) and [the prisoner] has one or more prior sexual felony convictions as 
determined under AS 12.55.145(a)(4)." 

    5   See   AS   33.16.090(b)(2):     "A    prisoner   [who   would   otherwise    be]  eligible  [for 

discretionary parole] under (a) of this section [but] who is sentenced ... to a single sentence 
                                                                                        (continued...) 

                                                 - 5 -                                            2315
 

----------------------- Page 6-----------------------

entire term   of imprisonment imposed on them.         But because the sentencing judge is 

authorized to adjust the 99-year presumptive term for statutory mitigating factors, and 

because the three-judge panel is authorized to adjust the presumptive term for non- 

statutory mitigating factors or for manifest injustice, a defendant who is sentenced under 

AS 12.55.125(i)(1)(F) may receive a term of imprisonment that is substantially less than 

the 99-year presumptive term specified in the statute (and they may be granted parole 

eligibility by the three-judge panel). 

        Sikeo's   argument     that  the  proportionality    of  the  99-year   sentence 
       prescribed by AS 12.55.125(i)(1)(F) should be assessed by comparing it to 
        the range of sentences prescribed for murder 

               Sikeo argues that if he had committed first-degree murder instead of first- 

degree sexual abuse of a minor, he would have faced a significantly more lenient penalty 

range.   Sikeo points out that, even though the maximum penalty for first-degree murder 

is the same 99-year term of imprisonment that he faced for first-degree sexual abuse of 

a minor, the minimum penalty for first-degree murder is only 20 years.            Thus, Sikeo 

argues, if he had killed someone instead of sexually abusing someone, the sentencing 

judge would not have been required to sentence him to a mandatory term of 99 years; 

rather, the judge could have sentenced him to as little as 20 years to serve. 

               This reasoning is unpersuasive for three reasons. 

    5   (...continued) 

within or below a presumptive range set out in AS 12.55.125(c), (d)(2) - (4), (e)(3) and (4), 
or (i), and [who] has not been allowed by the three-judge panel under AS 12.55.175 to be 
considered for discretionary parole release, may not be released on discretionary parole until 
the prisoner has served the term imposed, less good time earned under AS 33.20.010[.] 

                                             - 6 -                                          2315 

----------------------- Page 7-----------------------

                 First, as we explained in the preceding section of this opinion, the 99-year 

 term of imprisonment prescribed by AS 12.55.125(i)(1)(F) is not a mandatory term of 

 imprisonment, but rather a presumptive term. 

                 Second, even though the sentencing range for first-degree murder is 20 to 

 99 years' imprisonment, this Court has held that a typical defendant who commits a 

 typical    first-degree     murder     can   receive    the   maximum        sentence     of  99    years' 

 imprisonment.   As we explained in Sakeagak v. State, 952 P.2d 278, 285 (Alaska App. 

 1998): 

                 [I]n Riley v. State, 720 P.2d 951 (Alaska App. 1986), ... this 
                 court rejected a proposed 60-year benchmark sentence for 
                 first-degree murder - primarily because 99-year sentences 
                 for first-degree murder have consistently been upheld by the 
                 Alaska appellate courts.  Id., 720 P.2d at 952.  Riley does not 
                 establish    the   rule  that   first-degree   murderers     can  always 
                 receive   99-year   sentences,   nor   does  Riley   free   sentencing 
                 judges   from   the   obligation   to   base   sentences   on   a   careful 
                 consideration of the Chaney sentencing criteria.              See Riley, 
                 720   P.2d   at   952;  State   v.   Chaney,   477   P.2d   441,   443-44 
                 (Alaska     1970);    AS    12.55.005.     However,       after  Riley,   a 
                 defendant who challenges a 99-year sentence for first-degree 
                 murder must show some reason to believe that his offense is 
                 mitigated or that his background is atypically favorable. 

                 In contrast, a first felony offender convicted of first-degree sexual abuse of 

 a minor faces a presumptive range of 20 to 30 years, or a presumptive range of 25 to 35 

 years, depending on the circumstances of the offense.  See AS 12.55.125(i)(1)(A) - (B). 

                 This brings us to the main underlying flaw in Sikeo's position - our third 

 reason for rejecting his argument.  Sikeo asserts that when we assess the proportionality 

 of his sentence - that is, the proportionality of the sentence prescribed for a third sexual 

felony offender  convicted of first-degree sexual abuse of a minor - we should compare 

                                                   - 7 -                                              2315
 

----------------------- Page 8-----------------------

it to the sentence prescribed for afirst felony offender  convicted of murder.                This is a 

flawed comparison. 

                The legislature may constitutionally prescribe a more severe punishment 

or range of punishment for repeat   felony offenders.             This being so, it is illogical to 

compare Sikeo's prescribed punishment for sexual abuse of a minor, which is based in 

part on his recidivism, to the punishment prescribed for other defendants who may have 

committed more serious crimes, but who are not repeat felony offenders.                    Rather, we 

should   be   comparing      Sikeo's   sentence   to   the   sentence   prescribed   for  third   felony 

offenders convicted of murder and other serious felonies. 

                It is true that the statute governing the sentence for   murder in the first 

degree - AS 12.55.125(a) - does not have graduated penalty ranges for first, second, 

and third felony offenders. But there is another statute, AS 12.55.125(l), which provides 

a substantially increased penalty for all defendants who commit either an unclassified 

felony or a class A felony if they have at least two prior convictions for a "most serious 

felony" - a term that encompasses all unclassified felonies, all class A felonies, first- 

degree arson, and first-degree promoting prostitution; see AS 12.55.185(10). 

                Under this repeat offender statute, a defendant who is convicted of a third 

unclassified or class A felony "shall be sentenced to a definite term of imprisonment of 

99   years".   AS   12.55.125(l).     The   statute   further   declares   that   this   99-year   term   of 

imprisonment may not be suspended, nor may the defendant's term of imprisonment 

otherwise     be   reduced,    except   that  the  defendant     is  allowed    to  apply   once   for  a 

modification or reduction of their sentence under the Alaska Criminal Rules after they 

serve one-half (i.e., 49 years) of their term of imprisonment.  See AS 12.55.125(j). 

                                                 - 8 -                                             2315
 

----------------------- Page 9-----------------------

                Defendants who are sentenced for a third unclassified or class A felony 
under AS 12.55.125(l) are not eligible for discretionary parole, 6 nor are they eligible for 

good time credit. 7     In other words, they will remain in prison for the rest of their lives 

unless, after serving a minimum of 49 years, they obtain a reduction of their sentence 

pursuant to AS 12.55.125(j). 

                AS   12.55.125(l)   is   merely   the   most   recent   incarnation   of   the   "habitual 

offender" sentencing statutes that have been part of Alaska law since territorial days. 

Before our current criminal code took effect, former AS 12.55.050 was the statute that 

prescribed increased sentences for repeat felony offenders.  Under that statute, a second 

felony offender could be sentenced to up to twice the maximum term of imprisonment 

prescribed for their current offense; a third felony offender could be sentenced to up to 

four times the maximum term of imprisonment prescribed for their current offense, and 

    6   See AS 33.16.090(a)(1). 

    7   See AS 33.20.010(a)(2). 

                                                  - 9 -                                               2315 

----------------------- Page 10-----------------------

a fourth felony offender could be sentenced to life imprisonment. 8                 Before statehood, a 

similarly worded territorial statute prescribed these same increased penalties. 9 

                 Such   increased   penalties   for   repeat   felony   offenders   are   presumptively 

constitutional.  As our supreme court explained in State v. Carlson, 560 P.2d 26, 28-29 

(Alaska 1977): 

                 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. 

    8   Former   AS   12.55.050   (originally   enacted   by   SLA       1962,   ch.   34,     8.05,   and   as 

amended in 1964 and 1965) provided: 

    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 is convicted of a felony which would be punishable by imprisonment 
    for a term less than his natural life, and 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 [current] felony of which that person is 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 herein for a second conviction of felony [i.e., four times the longest term 
    prescribed for the current underlying 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. 

    9   Before statehood, the subject of increased penalties for repeat felony offenders was 

addressed by  66-21-2 of the Compiled Laws of Alaska (1949) (originally enacted by Laws 
1939, ch. 53,  2).     That territorial statute contained essentially the same penalty provisions 
as former AS 12.55.050 (the statute whose text is quoted in the preceding footnote). 

                                                   -  10 -                                             2315
 

----------------------- Page 11-----------------------

                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 as that he is deemed 
                incorrigible when he persists in violations of the law after 
                conviction of previous infractions. 

(citations and internal quotations omitted).           A footnote that accompanies the above- 

quoted portion of Carlson notes that essentially all states impose increasingly severe 

penalties   on   repeat   felony   offenders   -   penalties   that   go   as   high   as   mandatory   life 

imprisonment without parole.          Carlson, 560 P.2d at 29 n. 8. 

        The   proportionality   of   the   99-year   presumptive   term   of   imprisonment 
        prescribed     by   AS   12.55.125(i)(1)(F)      when    compared      to  the  99-year 
        mandatory term of imprisonment prescribed by AS 12.55.125(l) 

                Sikeo's crime - first-degree sexual abuse of a minor - is an unclassified 
felony. 10   Thus, if Sikeo had committed this crime after being previously convicted of 

any two unclassified or class A felonies, he would have been subject to the 99-year 

mandatory term of imprisonment prescribed by AS 12.55.125(l) - irrespective of the 

sentencing provisions of AS 12.55.125(i)(1) that Sikeo challenges in this appeal. 

                Sikeo's sentencing is not governed by AS 12.55.125(l) because his prior 

convictions are not for unclassified or class A felonies.             Rather, both of Sikeo's prior 

    10  See AS 11.41.434(b). 

                                                 -  11 -                                             2315 

----------------------- Page 12-----------------------

convictions   are   for   attempted   second-degree   sexual   abuse   of   a   minor   -   a   class   C 
felony. 11 

                In his brief, Sikeo gives a passing mention to the mandatory 99-year term 

of   imprisonment   prescribed   by   AS   12.55.125(l),   but   he   does   not   suggest   that   this 

mandatory   term   of   imprisonment   is   unconstitutional.        Our   research   shows   that   this 

mandatory term is at least presumptively constitutional - because the United States 

Supreme Court has repeatedly rejected "cruel and unusual punishment" challenges to 

sentencing statutes that prescribe greatly increased sentences for repeat felony offenders. 

The Supreme Court has declared that these increased penalties are "proportionate" for 

purposes of the Eighth Amendment because state legislatures are entitled to take account 

of   the   defendant's   history   of   criminal   conduct   and   recidivism   when   assessing   the 

defendant's danger to the public and the need to deter or forestall future crime.                     See 

Ewing v. California, 538 U.S. 11, 30-31; 123 S.Ct. 1179, 1190; 155 L.Ed.2d 108 (2003); 

Rummel v. Estelle, 445 U.S. 263, 284-85; 100 S.Ct. 1133, 1144-45; 63 L.Ed.2d 382 

(1980) (upholding a mandatory life sentence imposed on a defendant who committed 

felony theft - obtaining $120.75 by false pretenses - and who had two prior felony 

convictions). 

                The Alaska Constitution's prohibition on cruel and unusual punishments 

might potentially be construed more broadly than its federal counterpart. But the Alaska 

Supreme Court has consistently held that our state constitution does not require that 

criminal penalties be directly proportionate to the offense.             Only punishments that are 

"so disproportionate to the offense committed as to be completely arbitrary and shocking 

to the sense of justice" are cruel and unusual for purposes of Article I, Section 12 of our 

    11  See AS 11.41.436(b) (classifying second-degree sexual abuse of a minor as a class B 

felony) and AS 11.31.100(d)(4) (declaring that any attempt to commit a class B felony is a 
class C felony). 

                                                 -  12 -                                              2315 

----------------------- Page 13-----------------------

Constitution.  Thomas v. State, 566 P.2d 630, 635 (Alaska 1977);see also Green v. State, 

390 P.2d 433, 435 (Alaska 1964); McNabb v. State, 860 P.2d 1294, 1298 (Alaska App. 

1993). 

              For these reasons, we presume (for purposes of the present case) that the 

99-year mandatory term of imprisonment prescribed by AS 12.55.125(l) - that is, the 

99-year term of imprisonment prescribed for a defendant who commits an unclassified 

or class A felony after having been convicted on at least two   prior occasions of an 

unclassified or class A felony - is constitutional. 

              Because of this, if Sikeo is to prevail in his "cruel and unusual punishment" 

claim, he must establish that his 99-year sentence for first-degree sexual abuse of a minor 

is arbitrarily and shockingly disproportionate when compared to the 99-year sentences 

imposed on other repeat felony offenders under AS 12.55.125(l). 

              As we have explained, Sikeo's current offense (first-degree sexual abuse 

of a minor) is an unclassified felony, and Sikeo is a third felony offender, but he is not 

subject to the mandatory 99-term prescribed by AS 12.55.125(l) because his two prior 

felony convictions are for attempted second-degree sexual abuse of a minor, which is a 

class C felony. 

              In light of this distinction, we believe that the real underlying question 

presented in Sikeo's appeal is whether it is shockingly or arbitrarily disproportionate for 

the legislature to prescribe a 99-yearpresumptive (i.e., modifiable) term of imprisonment 

for defendants who commit first-degree sexual abuse of a minor and who have two prior 

convictions for sexual felonies (even if those sexual felonies are only class B or class C 

felonies), given the fact that the legislature has prescribed a 99-year mandatory term of 

imprisonment for all defendants who commit an unclassified or class A felony (such as 

first-degree sexual abuse of a minor) if the defendants have two prior convictions for 

unclassified or class A felonies of any kind. 

                                            -  13 -                                      2315
 

----------------------- Page 14-----------------------

                This question more or less answers itself.         If the 99-year mandatory term 

of   imprisonment   prescribed   by   AS   12.55.125(l)   is   constitutional,   then   the   99-year 

presumptive term of imprisonment prescribed by AS 12.55.125(i)(1)(F) is not shockingly 

or arbitrarily disproportionate.  Sikeo's prior felonies may not have been unclassified or 

class A felonies, but they were sexual felonies - and, thus, they bear special relevance 

to the sentencing of a repeat sexual offender.   Moreover, as we have already explained, 

the 99-year presumptive term of imprisonment prescribed by AS 12.55.125(i)(1)(F) is 

more     lenient   than  the   99-year   mandatory      term   of  imprisonment      prescribed    by 

AS 12.55.125(l) for all defendants convicted of a third unclassified or class A felony. 

                We therefore reject Sikeo's constitutional attack on the 99-year presumptive 

term prescribed by AS 12.55.125(i)(1)(F). 

                The judgement of the superior court is AFFIRMED. 

                                               -  14 -                                          2315
 
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