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Luckart v. State (1/27/2012) ap-2343

Luckart v. State (1/27/2012) ap-2343

                                               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 



JAMES LUCKART,                                  ) 

                                                )           Court of Appeals No. A-10388 

                            Appellant,          )           Trial Court No. 1SI-06-513 CR 

                                                ) 

             v.                                 ) 

                                                )                   O P I N I O N 

STATE OF ALASKA,                                ) 

                                                ) 

                            Appellee.           ) 

                                                )             No. 2343 - January 27, 2012 



                Appeal from the Superior Court, First Judicial District, Sitka, 

                Patricia A. Collins, Judge. 



                Appearances:     Michael Schwaiger, Assistant Public Defender, 

                and    Quinlan    Steiner,  Public   Defender,    Anchorage,     for  the 

                Appellant.     Diane L. Wendlandt, Assistant Attorney General, 

                Office   of   Special   Prosecutions   and   Appeals,   Anchorage,   and 

                John J. Burns, Attorney General, Juneau, for the Appellee. 



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

                Judges. 



                BOLGER, Judge.
 

                COATS, Chief Judge, concurring.
 



                James   Luckart   was   convicted   of   attempted   first-degree   sexual   assault. 



Superior Court Judge Patricia A. Collins referred the case to the three-judge sentencing 


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

panel based on her findings suggesting that it would be manifestly unjust to impose a 



sentence within the presumptive range for this offense. The panel agreed that it would 



be manifestly unjust to sentence Luckart within the presumptive range, but the panel 



declined     to  sentence   Luckart    because    the  panel   concluded    that  he  did   not  have 



exceptional potential for rehabilitation. We conclude that the panel should have retained 



the case and imposed an appropriate sentence. 



        Background 



                After a Halloween party, Luckart began to bind a female acquaintance with 



packing tape while she was sleeping in her bed, and then fled when she fought back. 



Luckart later admitted that he was trying to sexually assault her. He was convicted of one 



count of attempted first-degree sexual assault, one count of third-degree assault, and one 



count of fourth-degree assault. 



                At his original sentencing hearing, Luckart argued that his sentence should 



be mitigated under AS 12.55.155(d)(3) because he committed the offense "under some 



degree of ... compulsion." He presented testimony that he suffered from post-traumatic 



stress disorder and that his misconduct was the result of a "repetition compulsion" - 



that is, a compulsion to reenact abuse he suffered when he was hog-tied with duct tape 



as a child. In the alternative, Luckart requested that the court refer his case to the three- 



judge sentencing panel. 



                Judge   Collins   rejected   Luckart's   proposed   mitigating   factor.   The   court 



concluded that an equally plausible reason for Luckart's use of the packing tape was to 



cover his victim's eyes and mouth so that she could not call out for help or see her 



attacker. The court also rejected Luckart's claim that his case should be referred to the 



                                                  2                                             2343
 


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

three-judge panel because the court concluded he did not have extraordinary potential 



for rehabilitation. 



                But Judge Collins noted that Luckart faced a presumptive range of twenty- 



five to thirty-five years, and that he would not be eligible for parole until he served 



seventeen or eighteen years of his sentence. The court decided to refer the case to the 



three-judge panel because of Luckart's youth and lack of prior criminal record. The court 



noted that "injustice could result if [Luckart] could not even be eligible for parole until 



[he] had served ... at least 18 years of the minimum sentence of 25." 



                In her written referral order, Judge Collins found that Luckart was only 



eighteen, had no prior adult criminal record, and had never spent more than one night in 



jail. The court also found that Luckart was cooperative with police, confessed, and at 



least initially seemed to show remorse. She concluded that "Luckart's youth, lack of 



adult   criminal   record,   cooperation/immediate   confession   to   the   police,   and   apparent 



remorse are a cumulative non-statutory mitigating factor that warrants referral." The 



court explained that "[t]his is particularly so because of changes to the law that mandate 



that   Mr.   Luckart   is   not   eligible   for   parole   until   serving  at   least   two-thirds   of   the 



mandatory minimum sentence of 25 years - or until almost 17 years from now." 



                At the hearing before the three-judge panel, the State argued that Judge 



Collins did not specifically find that it would be manifestly unjust to impose a sentence 



within the applicable presumptive range, and it asked the panel to return Luckart's case 



to Judge Collins so she could clarify her findings. The panel disagreed that the court's 



findings required clarification.  Although Judge Collins made no explicit finding on this 



issue, the panel concluded that it was apparent "[from] reading the [judge's] findings and 



the comments on the record as a whole" that Judge Collins had   indeed found that it 



would be manifestly unjust to sentence Luckart within the presumptive range. 



                                                    3                                               2343
 


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

                 The panel agreed with Judge Collins that it would be manifestly unjust to 



sentence   Luckart   within   the   presumptive   range   and   to   limit   his   parole   eligibility   as 



required     by   the  presumptive      sentencing    laws.   The    panel   relied  on   the  same    four 



considerations that had formed the basis for Judge Collins's referral: Luckart's youth, 



his remorse, his lack of criminal history, and the fact that he had turned himself in and 



confessed. 



                 However, the panel also interpreted AS 12.55.175(e) to mean that, even 



though   the   panel   finds   that   manifest   injustice   would   result   from   application   of   the 



presumptive   range,   the   panel   must   also   find   that   the   defendant   has   an   exceptional 



potential for rehabilitation before it can adjust a defendant's sentence. Because the panel 



could not find exceptional potential for rehabilitation, the panel remanded the case to 



Judge Collins. 



                 On remand, Judge Collins sentenced Luckart to thirty years with five years 



suspended for the attempted first-degree sexual assault conviction. The court merged the 



assault    convictions     with   the   attempted     sexual   assault   conviction     for  purposes     of 



sentencing. Luckart now appeals. 



        Discussion 



                Alaska Statute 12.55.175(e) does not apply to Luckart. 



                 Even though the three-judge panel agreed with Judge Collins that it would 



be manifestly unjust to sentence Luckart within the applicable presumptive range, the 



panel concluded that the provisions of AS 12.55.175(e) barred it from imposing a lesser 



sentence. This statute provides: 



                 If the three-judge panel determines ... that manifest injustice 

                 would     result   from   imposition     of   a  sentence    within    the 



                                                     4                                                2343
 


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

                 presumptive range and the panel also finds that the defendant 

                 has   an   exceptional   potential   for   rehabilitation   and   that   a 

                 sentence      of  less  than   the   presumptive      range    should    be 

                 imposed because of the defendant's exceptional potential for 

                 rehabilitation, the panel ... shall sentence the defendant within 

                 the   presumptive       range   required     under   AS    12.55.125      or 

                 [within the expanded range] permitted under AS 12.55.155 

                 ...  [but]   may    provide     that  the   defendant     is  eligible   for 

                 discretionary parole ... during the second half of the sentence 

                 ... if the defendant successfully completes all rehabilitation 

                 programs ordered ... . 



                 The three-judge panel interpreted this statute to mean that the panel could 



retain Luckart's case, and could impose sentence on Luckart, only if the panel concluded 



both that any sentence within the presumptive range would be manifestly unjust and that 



Luckart had exceptional potential for rehabilitation. This is a misreading of the statute. 



                 As this court recently held in Garner v. State, the legislature intended for 



AS 12.55.175(e) to apply to cases that are referred to the three-judge sentencing panel 



solely on the ground that the defendant has exceptional potential for rehabilitation that 



would      make    it  manifestly    unjust   to  sentence     the  defendant     within    the  applicable 

presumptive sentencing range. 1 As we explained in Garner, even though the wording of 



AS 12.55.175(e) might have been clearer, the legislative history of the statute shows that 



the purpose of this statute was to restrict the sentencing authority granted to the three- 

judge panel under this court's decision in State v. Price.2 



                 The Price decision dealt with cases that are referred to the three-judge panel 



on   the   basis   of   a   non-statutory   mitigating   factor   (such   as   exceptional   potential   for 



     1   ___ P.3d ___, Op. No. 2338, 2011 WL 5904470, at *3-4 (Alaska App. Nov. 25, 2011). 



    2    Id. at *3 (discussing State v. Price, 740 P.2d 476 (Alaska App. 1987)). 



                                                      5                                                  2343 


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

rehabilitation).3  This court issued two major rulings in Price , and AS 12.55.175(e) was 



intended to overturn the second of these rulings. 



                 Our first ruling in Price was that a defendant's sentence should not be 



adjusted to any greater degree for a non-statutory mitigating factor than it could have 

been     adjusted    under    AS   12.55.155(a)      for  a  statutory    mitigating     factor.4  If,  under 



AS 12.55.155(a)(2), the defendant's presumptive sentence could be reduced by only 



fifty percent for a statutory mitigator, then the three-judge panel was bound by this same 

limitation when adjusting the defendant's sentence for a non-statutory mitigator.5 



                 Our second ruling in Price was that the three-judge panel had the authority 



to exceed this normal limitation if the panel additionally found that, even after making 



this fifty-percent adjustment to the applicable presumptive sentencing range, the resulting 

lesser sentence was still manifestly unjust.6 In Garner, we held that AS 12.55.175(e) was 



meant to rescind this second holding in Price .7 



                 As we explained in Garner, AS 12.55.175(e) was intended to establish this 



fifty-percent reduction of the presumptive sentence as the limit of the three-judge panel's 



sentencing   authority   in   cases   that   are   referred   to   the   panel   on   the   basis   of   the   non- 

statutory mitigator of exceptional potential for rehabilitation.8                Under this statute, the 



    3    See 740 P.2d at 481.
 



    4    See id. at 482.
 



    5   Id.
 



    6   Id.
 



    7    Garner, 2011 WL 5904470, at *3-4.
 



    8   Id. at *4.
 



                                                       6                                                 2343
 


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

panel has no authority to reduce the defendant's term of imprisonment any further on this 

basis - although the panel may grant the defendant expanded parole eligibility.9 



                 The three-judge panel, acting without the benefit of Garner, interpreted 



AS 12.55.175(e) as applying to all instances in which a case is referred to the panel based 



on the conclusion that a sentence within the applicable presumptive range would be 



manifestly unjust. Further, the panel interpreted the statute to mean that, even when any 



sentence within the presumptive range would be manifestly unjust, the panel is forbidden 



from   keeping   the   case   unless   the   panel   additionally  finds   that   the   defendant   has   an 



exceptional potential for rehabilitation. 



                 Our decision in Garner clarifies that this was a misreading of the statute. 



Alaska Statute 12.55.175(e) applies only to cases that are referred to the panel on the 



basis of the non-statutory mitigator of exceptional potential for rehabilitation. The statute 



does   not   apply   to   cases   that   are   referred   to   the   panel   based   on   other   non-statutory 



mitigators; nor does it apply to cases that are referred to the panel based on a finding that 



any sentence within the applicable presumptive range (even after adjustment for statutory 



aggravators and mitigators) would be manifestly unjust. 



                 Luckart's case was referred to the panel on this latter basis:  on the theory 



that, given the facts of Luckart's case, any sentence within the applicable presumptive 



range   would   be   manifestly   unjust.   Accordingly,   AS   12.55.175(e)   does   not   apply   to 



Luckart's case. 



                 Because AS 12.55.175(e) does not apply to Luckart's case, and because 



(as we explain in the next section of this opinion) the three-judge panel agreed with 



Judge   Collins   that   any   sentence   within   the   applicable   presumptive   range   would   be 



    9   Id. 



                                                      7                                                  2343 


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

manifestly unjust, the panel should have kept Luckart's case and should have sentenced 



Luckart to a term of imprisonment below the presumptive range. 



                 The panel's decision was consistent with the referral from 

                 Judge Collins . 



                 The parties agree that the three-judge panel erred when it relied on AS 



12.55.175(e)   to   remand   the   case   to   the   sentencing   court.    Luckart   contends   that   we 



should therefore remand this case to the three-judge panel for sentencing. But the State 



argues that we should send   the   case back to the sentencing court because the order 



referring the case to the three-judge panel was ambiguous. 



                 The interpretation of an ambiguous court order is a legal issue that we 

review independently.10 We must examine all parts of the order and construe them as a 



whole.11 We must interpret the order in a way that is reasonable, effective, and consistent 



with the facts and law of the case.12 



                 In her oral remarks at the sentencing hearing, Judge Collins stated that 



Luckart's youth and lack of criminal record warranted review of his sentence by the 



three-judge panel. She also stated that injustice could result because Luckart would not 



be eligible for parole until he had served about eighteen years of the minimum twenty- 



five year presumptive sentence. Then, in her written order, the judge stated that Luckart's 



youth, lack of adult criminal record, cooperation with the police, and apparent remorse 



constituted a cumulative non-statutory mitigating factor that warranted referral to the 



    10   Cf.   Pennington   v.   Emp'r   Liab.   Assurance   Corp.,   520   P.2d   96,   97   (Alaska   1974) 



(reviewing an ambiguous judgment). 



    11  Id.
 



    12  Id.
 



                                                      8                                                2343
 


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

panel. The judge stated that this was especially so because of sentencing statutes that 



would require Luckart to serve at least two-thirds of the minimum presumptive sentence 



before he would be eligible for discretionary parole. This record supports the sentencing 



panel's conclusion that Judge Collins found that manifest injustice would result from 



imposition of a sentence within the presumptive range.               We therefore reject the State's 



claim that this case should be remanded to the sentencing court for clarification of Judge 



Collins's order. 



                The State further argues that Judge Collins's aggregation of a series of case- 



specific considerations into one "cumulative" mitigator is inconsistent with the policy 



of AS 12.55.165-175, which envisions identification of a single non-statutory mitigating 



factor. But even assuming this argument has merit, the entirety of the judge's remarks 



at both the sentencing hearing and in her written order indicate that she referred this case 



to the three-judge panel primarily based on her conclusion that it would be unfair to 



apply the presumptive range to Luckart. 



                This conclusion is potentially critical to our decision. The commentary to 



AS 12.55.175 strongly suggests that the jurisdiction of the three-judge panel is limited 

by the scope of the referral from the sentencing court. 13 The commentary states:  "If the 



three-judge   panel  agrees  with   the   sentencing   court   and   finds   that   manifest   injustice 



would result from imposition of the presumptive term, it may sentence the defendant to 



any term of imprisonment ... . If the three-judge panel does not agree with the sentencing 

court's finding, it is required to remand the case to the sentencing court ... ."14 



    13  See Heathcock v. State, 670 P.2d 1155, 1157 (Alaska App. 1983). 



    14  Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47, at 



162-63, 1978 Senate Journal 1399 (emphasis added). 



                                                    9                                                2343 


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

                 Even   assuming   that   the   three-judge   panel's   authority   is   limited   in   this 



fashion, there is no serious question in this case that the three-judge panel agreed with 



the referral from the sentencing court. When the panel made   its   finding of manifest 



injustice, it relied on the same four considerations that the sentencing court relied on. We 



thus   conclude   that   the   panel's   conclusion   was   consistent   with   the   referral   by   Judge 



Collins. Once it reached this conclusion, the panel was required to impose an appropriate 



sentence. We must remand this case to the panel to correct this error. 



                 Luckart also argues that the three-judge panel was required to consider 



Judge Collins's order only as a referral based on a non-statutory mitigating factor. But 



when   we   read   Judge   Collins's   remarks   as   a   whole,   we   conclude   that   her   referral   is 



inconsistent   with   this   approach.   The   panel   correctly   concluded   that   Judge   Collins 



referred this case based on a general finding of manifest injustice. This conclusion now 



requires the panel to impose a sentence that is less than the lower end of the presumptive 



range. 



                 Luckart's arguments about the presumptive range are not 

                 ripe for review. 



                 Luckart   also   argues   that   the   presumptive   range   for   his   circumstances 



contains an anomaly that should be corrected by statutory construction. He points out 



that   the   presumptive   range   for   an   attempted   first-degree   sexual   assault   where   the 



defendant       used     a   dangerous      instrument       is  twenty-five       to   thirty-five    years' 

imprisonment,15 exactly the same range that applies to a completed first-degree sexual 



assault     where    the   defendant     used    a  dangerous      instrument. 16    He   argues     that  the 



    15  AS 12.55.125(i)(2)(B). 



    16  AS 12.55.125(i)(1)(B). 



                                                      10                                                  2343 


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

presumptive range for most other attempted sexual offenses has a lower end that is five 

years less than the completed offense.17 He also argues that the presumptive range for 



attempted   sexual   assault   should      not   require   a   greater   sentence  than  the   minimum 



sentence for second-degree murder or attempted first-degree murder. 



                In response, the State points to a letter of intent adopted by the legislature 



that specifically states that the legislature carefully considered each of the presumptive 

sentencing ranges and that the ranges are not anomalous.18  The State also argues that 



offenses     involving    a  dangerous     instrument   can    be  especially    serious   and   that   the 



legislature could reasonably conclude that this consideration overrides the fact that the 



offense was not completed. 



                One remedy for the type of injustice that Luckart alleges is a referral to the 

three-judge panel.19 And we have already decided that this case must be remanded to the 



three-judge panel for resentencing. On remand, the panel is not restricted by the lower 



end of the presumptive range (the part of the statute Luckart objects to) because the panel 



has already concluded that a sentence within   that range would be manifestly unjust. 



Luckart's argument about the presumptive range will likely be moot when the panel 



imposes an appropriate sentence below the presumptive range. We thus conclude that 



Luckart's arguments on this issue are not ripe for review. 



    17  For example, compare AS 12.55.125(i)(1)(A)(ii) (providing a presumptive term of 20 



to   30   years   for  a  first  felony  conviction    of   first-degree   sexual   assault),   with   AS 

12.55.125(i)(2)(a)(ii) (providing a presumptive term of 15 to 30 years for attempted first- 

degree sexual assault). 



    18  See 2006 Senate Journal 2209. 



    19  See New v. State, 714 P.2d 378, 382 (Alaska App. 1986). 



                                                    11                                              2343
 


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

       Conclusion 



              We VACATE the sentence imposed by the superior court and REMAND 



to the three-judge panel to impose sentence. We do not retain jurisdiction of this case. 



                                            12                                      2343
 


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

COATS, Chief Judge, concurring. 



                I agree that Judge Collins made sufficient findings to refer Luckart's case 



to the three-judge panel. Judge Collins found a non-statutory mitigating factor based 



upon   Luckart's   youth,   his   lack   of   adult   criminal   record,   his   cooperation   with   and 



immediate confession to the police, and his apparent remorse. She also found, based 



upon these same factors, that it would be manifestly unjust to sentence Luckart within 



the presumptive range for his offense:         a minimum sentence of twenty-five years, with 



no eligibility for parole until he had served nearly seventeen years. 



                The three-judge panel agreed with Judge Collins that, based upon these 



factors, a sentence within the applicable presumptive range would be manifestly unjust. 



I agree with the opinion of this court that, under these circumstances, the three-judge 



panel was required to keep Luckart's case and to sentence him to a term of imprisonment 



below the presumptive range. 



                I write separately to point out an argument Luckart made on appeal that has 



some force and that I hope the three-judge panel will consider in imposing sentence. 



Luckart   reviewed      the   legislative   history  of   the   2006  revisions   to   the   presumptive 



sentencing ranges and observed that the steep increase in the ranges for sexual offenses 



was based on the legislature's findings that sex offenders do not respond to rehabilitative 



treatment   and   usually   are   not   caught   until   they   have   committed   many   sex   crimes. 



Luckart argues that it would be manifestly unjust to sentence him based upon these 



legislative assumptions, because they do not apply to him. 



                When the legislature enacted these sentencing ranges, it issued a letter of 



intent entitled "The Purposes And Rationale Underlying The Increase In Sentencing 



                                                   13                                              2343
 


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

                                                          1 

Ranges For Felony Sex Crimes In Alaska."  That letter sets out the legislative finding 

that Alaska has an extremely high level of sexual offenses.2 The letter states that these 



offenses   cause   substantial   harm   to   the   victim,   the   victim's   family,   and   society.3         In 



addition,   the   letter   finds   "that   sex   offenders   have   multiple   victims   and   often   do   not 

respond to treatment ... ."4 The legislature concludes that these factors support the need 



to isolate sex offenders to protect the public and to deter potential offenders, to the extent 

they can be deterred, from committing these offenses.5 



                  In setting these higher sentencing ranges for sex offenses, the legislature 

specifically recognized that there would be exceptional cases that "[cry] out for mercy."6 



The letter of intent points out that "[t]he criminal justice system often weeds these cases 

out in the referral and plea bargaining process."7 The letter also notes that "the courts of 



Alaska   will   be   able   to   avoid   manifestly   unjust   sentences   in   appropriate   cases"   by 

applying statutory mitigating factors or referring cases to the three-judge panel.8 



                  From my review of the legislative history, I conclude that the legislature 



increased the presumptive sentencing ranges for sexual abuse of a minor and sexual 



assault in part to address the seriousness of these offenses and their negative impacts on 



    1    2006 Senate Journal 2207-14.
 



    2    Id. at 2208.
 



    3    Id. at 2210-11.
 



    4    Id. at 2210.
 



    5    Id . at 2210-11.
 



    6    Id. at 2212.
 



    7    Id.
 



    8    Id.
 



                                                        14                                                  2343
 


----------------------- Page 15-----------------------

victims and society. These factors are present in every sentencing case, and courts should 



consider them in imposing sentence. 



                But the presumptive ranges were also based on the legislature's conclusions 



that sexual offenders usually commit multiple offenses before they are caught, do not 



respond to rehabilitative treatment, and therefore cannot be safely released into society. 



It seems to me that a defendant convicted of a sex offense should have the opportunity 



at sentencing to rebut the assumptions underlying these conclusions, and to argue for a 



departure from the presumptive range on this basis. Indeed, in its letter of intent, the 



legislature   specifically   recognized   that   there   would   be   cases   in   which   sentencing   a 



defendant within the presumptive range would be manifestly unjust. The legislature also 



specifically noted that it was counting on the court system to provide a safety valve in 



such cases. 



                Under this court's decision, Luckart's case now returns to the three-judge 



panel. I would urge the panel to consider the legislative history behind the presumptive 



range applicable to Luckart's case. Luckart is a young first felony offender with no prior 



adult record. To the extent that Luckart can demonstrate to the panel that the legislative 



assumptions underlying the presumptive sentencing range for his offense do not apply 



to   him, the   panel would   be   justified   in   considering   that evidence   in   determining   an 



appropriate sentence. 



                                                    15                                              2343
 

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