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Luckart v. State (12/20/2013) ap-2406

Luckart v. State (12/20/2013) ap-2406

                                                  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 H. LUCKART,  

                                                                Court of Appeals No. A-11292  

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



                          v.  

                                                                        O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                  Appellee.                   No. 2406  -  December 20, 2013  



                 Appeal  from  the  Three-Judge  Sentencing  Panel  of  the  

                 Superior Court.  



                 Appearances:  Michael Schwaiger, Assistant Public Defend- 

                                                               

                 er, and Quinlan Steiner, Public Defender, Anchorage, for the  

                      

                 Appellant.  Diane L. Wendlandt, Assistant Attorney General,  

                 Office of Special Prosecutions and Appeals, Anchorage, and  

                                         

                 Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  the  

                 Appellee.  



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

                                                                         

                                  * 

                 Senior Judge  .  



                 Judge MANNHEIMER.  



         *   Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  11   of  the  Alaska  



Constitution and Administrative Rule 23(a).  


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

                     James H. Luckart stands convicted of attempted first-degree sexual assault.     



As we explained in our prior decision in this case -                                     Luckart v. State , 270 P.3d 816  



(Alaska App. 2012) - Luckart faces a presumptive sentencing range of 25 to 35 years'                  



imprisonment for his offense.   



                     Luckart's sentencing judge referred his case to the statewide three-judge  

                                                         



sentencing panel because she concluded that it would be manifestly unjust to sentence  

                                                                             

Luckart  within  this  presumptive  range. 1  

                                                                       The  sentencing  judge  concluded  that  the  



                                                                                    

injustice arose primarily from the fact that Luckart would not be eligible to apply for  



                                                                                                                 2  

early release on discretionary parole during his term of imprisonment.     



                      See AS 33.16.090(b)(2), which declares that defendants who receive a  



sentence under AS 12.55.125(i) - that is, defendants who are sentenced for sexual  



                                                                                                                         

assault or sexual abuse of a minor - "may not be released on discretionary parole until  



[they have] served the term imposed, less good time [awarded] under AS 33.20.010",  



unless the three-judge panel orders otherwise.  



                                                                                                                  

                     When  the  three-judge  panel  first  considered  Luckart's  case,  the  panel  



erroneously concluded that it had no authority to adjust Luckart's sentence, so the panel  

sent Luckart's case back to the individual sentencing judge. 3  

                                                                                                     In Luckart v. State , we  



                                                                                                    

reversed  the  three-judge  panel's  decision,  and  we  directed  the  panel  to  reconsider  



Luckart's case.  270 P.3d at 820-21.  



                                                                                                         

                     Now the three-judge panel has considered Luckart's case for a second time.  



The  three-judge  panel  agreed  with  the  sentencing  judge  that  it  would  be  unjust  to  



sentence Luckart to a term of imprisonment within the applicable presumptive range of  

                                                



           1    Luckart , 270 P.3d at 818.  



           2    Ibid.  



           3    Ibid.   



                                                                 - 2 -                                                                 2406  


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

25 to 35 years.  However, the panel concluded that it had no authority to follow the  

                                                                                      



sentencing judge's suggestion of granting Luckart enhanced eligibility for discretionary  

                                                                 



parole.  So, instead, the panel sentenced Luckart to a term of imprisonment well below  

                                                                                              



the applicable range:  25 years with 11 years suspended (14 years to serve).  



                     Luckart now appeals this sentence.   



                     Luckart first argues that the three-judge panel misunderstood the scope of  

                                                                                   



its authority - that the panel did have the authority to grant him enhanced eligibility for  

                                                   



discretionary parole.  The State agrees with Luckart.  And for the reasons explained in  

                                                  



this opinion, we agree as well.   



                     Luckart then argues that he should gain a double advantage from the three- 

                                                           



judge panel's error.  As we just explained, because the panel erroneously believed that  

                                                                                               



it could not expand Luckart's eligibility for discretionary parole, the panel sentenced  

              



Luckart  to  14  years  to  serve  -  a  term  of  imprisonment  below  the  low  end  of  the  

                                                                 



presumptive range.  Luckart now contends that, because the three-judge panel did not  



expressly restrict his eligibility for discretionary parole when it announced this 14-year  

                                                                                                  



sentence, Luckart should be able to apply for discretionary parole after serving one- 



quarter of this reduced sentence - so that, conceivably, he might be released from  

                  



prison after serving as little as 3  years.   



                     For the reasons explained in this opinion, we reject Luckart's contention  

                                                                                                     



about his parole eligibility.  The discretionary parole statute, AS 33.16.090(b), does  

                                                                                                        



indeed recognize the three-judge panel's authority to grant expanded parole eligibility  

                                                    



to  certain  defendants.    But  unless  the  panel  expressly  exercises  this  authority,  a  



defendant's eligibility for discretionary parole remains governed by the rules codified  

                    



in that statute.  In Luckart's case, his eligibility for discretionary parole is governed by  

                                                                               



AS 33.16.090(b)(2), and he therefore is not eligible to apply for discretionary parole until  

                                                                                           



he has served the 14 years, less good time credit.  



                                                               - 3 -                                                         2406
  


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

         A general overview of Alaska's presumptive sentencing statutes  



                   The Alaska Legislature has enacted presumptive sentencing ranges for most  



of the felony offenses defined in Title 11 of the Alaska Statutes.   



                   (Certain  serious  felonies  defined  in  Title  11  are  not  covered  by  the  



presumptive sentencing laws; the sentencing ranges for these offenses are set forth in  

                                                                   



AS 12.55.125(a) and (b).  And the presumptive sentencing laws do not apply to non- 

                                               



classified felony offenses.  By "non-classified", we mean felony offenses  defined in  



titles other than Title 11 that the Legislature has not classified as class A, class B, or  

                         



class C felony offenses .)  



                   For felonies that  are governed by the presumptive sentencing laws, the  



applicable  presumptive  range  for  any  given  offense  is  contained  in  one  of  four  



subsections of AS 12.55.125:  subsection (i) (covering sexual felonies), subsection (c)  

                                                                                           



(covering all other class A felonies), subsection (d) (covering all other class B felonies),  

                                                                                             



and subsection (e) (covering all other class C felonies).)  



                   A fifth subsection of AS 12.55.125 - subsection (g) - declares that  when  

                                                                                                   



a defendant is sentenced under one of the these four presumptive sentencing provisions  

                                                    



(i.e., "[when] a defendant is sentenced under (c), (d), (e), or (i) of [AS 12.55.125]"),  



the defendant's term of imprisonment can not be suspended or otherwise reduced below  

                                                                                          



the low end of the applicable presumptive range "except to the extent permitted under  



AS 12.55.155 - 12.55.175".   



                   This trio of statutes - AS 12.55.155, 165, and 175 -  contains the rules  

                                                     



that authorize the superior court to impose felony sentences outside the presumptive  



sentencing ranges specified in AS 12.55.125.   



                   AS 12.55.155 contains a list of aggravating and mitigating circumstances  

                                                                                   



which, if proved, authorize an individual sentencing judge to  impose a sentence that  

                                          



                                                           - 4 -                                                     2406
  


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

either exceeds or falls below the applicable presumptive range.                                  In  cases where the  

                                                                                                     



sentencing judge concludes that, even after the adjustments allowed by AS 12.55.155,  

                                                 



the defendant's sentence would still be manifestly unjust, AS 12.55.165 authorizes the  

                                                          



judge to refer the defendant's case to the statewide three-judge sentencing panel.   



                   The three-judge panel's sentencing authority is defined in AS 12.55.175.  

                                                                                         



If the three-judge panel agrees with the individual sentencing judge that it would be  



manifestly unjust to sentence the defendant within the normal presumptive sentencing  



rules (even after the adjustments allowed by AS 12.55.155), the three-judge panel has  



the authority (with a few exceptions) "[to] sentence the defendant to any definite term  



of imprisonment" within the entire range of sentences established by the Legislature for  

                                                                              



that offense.   



          A preliminary matter:  the distinction between "presumptive" sentences  

          and "non-presumptive" sentences  



                   Before we begin our detailed discussion of the legal issues presented in  



Luckart's case, we must first address a preliminary matter.  Throughout their briefs to  



this Court, both Luckart and the State speak of two distinct types of prison sentences:  



"presumptive"  sentences  (or  "presumptive"  terms  of  imprisonment),  versus  "non- 



presumptive" sentences (or "non-presumptive" terms of imprisonment).   



                   The  parties use the term "presumptive sentence" as meaning a term of  



imprisonment  during  which  the  defendant  is  not  eligible  to  apply  for  discretionary  

                                           



parole;   they   use   the   term   "non-presumptive   sentence"   as   meaning   a   term   of  

                                           



imprisonment during which the defendant is eligible to apply for discretionary parole.  

                                                                                               



                   This Court introduced this terminology - "presumptive sentences" and  

                                     



"non-presumptive sentences" - in our early decisions construing Alaska's presumptive  

                                                         



                                                           - 5 -                                                     2406
  


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

                             4 

sentencing statutes.    And this distinction is a useful one when it comes to distinguishing   



between (1) sentences that are governed by the presumptive sentencing provisions of  



AS 12.55.125 - 175, versus (2) sentences that are not governed by those provisions.   



                    But the distinction between "presumptive sentences" and "non-presumptive  



sentences"  is  not  as  useful  -  indeed,  it  can  be  misleading  -  when  the  issue  is  a  

                                                                                                   



defendant's   eligibility   for   parole.                   The   presumptive   sentencing   provisions   of  



AS 12.55.125 do not speak of parole eligibility.   They neither confer nor restrict it.  

                                                                             



Instead, a defendant's eligibility for discretionary parole is governed by the provisions  

                                                                                         



of AS 33.16.090.   



                    Under AS 33.16.090(b), the question of whether, or when, a defendant  



becomes eligible to apply for discretionary parole does not hinge directly on whether the  

                                                                                                



defendant received a "presumptive sentence" - i.e., whether the defendant's sentence  

                                                                                



was governed by the presumptive sentencing statutes, AS 12.55.125 - 175.  Rather, a  



defendant's parole eligibility hinges on several factors.  These factors are:   



                              (1) whether the defendant received a single sentence or  

                                                                                    



                    two or more sentences;  



                              (2) whether one or more of the defendant's sentences  



                    was imposed under AS  12.55.125(a) or (b) - that is, the  

                                                         



                    defendant was sentenced for one of the unclassified felonies  



                    where sentencing is not governed by presumptive sentencing;  



                              (3)  whether  the  sentencing  judge  exercised  their  

                                    



                    authority   under   AS   12.55.115   to   specially   restrict   the  



                    defendant's eligibility for discretionary parole; and  



          4    See,  e.g., Juneby v. State , 641 P.2d 823, 831-33 & n. 15 (Alaska   App. 1982);  



Lacquement v. State , 644 P.2d 856, 859 (Alaska App. 1982); Kimbrell v. State , 647 P.2d 618,   

621 n. 10 (Alaska App. 1982);               Peetook v. State , 655 P.2d 1308, 1310 (Alaska App. 1982).  



                                                            - 6 -                                                           2406  


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

                             (4) whether one or more of the defendant's sentences  



                   was imposed under AS 12.55.125(c), (d), (e), or (i) - that is,  

                                                                          



                   the defendant was sentenced for a felony where sentencing is  

                                                                     



                   governed by presumptive sentencing - and, if so, whether  

                                   



                   the imposed term of imprisonment is above, within, or below  



                   the applicable presumptive range.  



                   Under the provisions of AS 33.16.090(b), many defendants who receive  



"presumptive  sentences"  (i.e.,  sentences  governed  by  the  presumptive  sentencing  



provisions of AS 12.55.125) remain eligible for discretionary parole.  Subsection (b)(2)  

                                                                 



of the statute - the subsection that restricts eligibility for discretionary parole until the  

                                                                



defendant becomes eligible for mandatory parole - only applies to the most serious  



felonies covered by presumptive sentencing.  



                   By  its  terms,  the  parole  restriction  in  (b)(2)  applies  only  to  (1)  all  



defendants who are sentenced under 125(i) for a sexual felony, (2) all defendants who  

                                                                



are sentenced under 125(c) for any other class A felony, (3) second and third felony  

                                                                                          



offenders who are sentenced under 125(d)(2) - (d)(4) for any other class B felony, and  

                                                                               



(4) third felony offenders who are sentenced under 125(e)(3) - (e)(4) for any other class  

                                                                                           



C felony.   



                   Thus, all other felony defendants who receive a presumptive sentence -  



in other words, first felony offenders sentenced for a class B felony, as well as first and  

                                                                                     



second felony offenders sentenced for a class C felony - are covered by the parole  



eligibility  rule  found  in  AS  33.16.090(b)(5).    Even  though  these  defendants  have  



received  a  "presumptive  sentence"  (i.e.,  a  sentence  governed  by  the  presumptive  



sentencing provisions of AS 12.55.125 - 175), they are eligible to apply for discretionary  



parole after serving one-fourth of their sentence.  



                                                           - 7 -                                                     2406
  


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

                   (This same "one-fourth of the sentence" parole eligibility rule applies to  



defendants convicted of the non-classified felonies defined in titles other than Title 11,  

                                         



whose sentences are not governed by the provisions of AS 12.55.125 - 175.  Some  



examples  are  defendants  convicted  of  leaving  the  scene  of  an  injury  accident,  

                



AS 28.35.060(c), and defendants convicted of fraudulently retaining more than $1000  



in ticket receipts after a concert has been canceled, AS 08.92.060(b).)  



                   In addition, all defendants who receive two or more presumptive sentences  

                                                                                           



are eligible for discretionary parole after they fully serve their primary sentence (reduced  



by  good  time  credit)  plus  one-fourth  of  their  remaining  sentences.    See  AS  33.16.- 

              



090(b)(7)(C). Thus, even though all of the defendant's sentences are "presumptive", the  

                              



defendant is eligible for discretionary parole when serving the second and subsequent  



sentences.   



                   In sum, there is no direct relationship between a defendant's receiving a  



"presumptive"  sentence  and  a  defendant's  eligibility  (or  lack  of  eligibility)  for  



discretionary parole.  Under AS 33.16.090(b), the fact that a defendant has received one  

                                                                  



or more presumptive sentences is just one of the factors that must be assessed when  

              



determining  whether,  or  when,  the  defendant  will  become  eligible  to  apply  for  



discretionary parole.  



                   Therefore,  even  though  this  Court  has  sometimes  used  the  phrases  



"presumptive sentence" and "non-presumptive sentence" when we meant to refer to a  



defendant's eligibility for parole (or lack of eligibility for parole), this usage is a legal  



shorthand, and it is not completely accurate.   



                   There      are    indeed      "presumptive         sentences"        and     "non-presumptive  



sentences"  -  in  the  sense  that  there  are  sentences  which  are  imposed  under  the  



presumptive sentencing provisions of AS 12.55.125 - 175, and sentences which are not  

                                                                                                        



                                                         - 8 -                                                     2406
  


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

imposed under those presumptive sentencing provisions.  But "presumptive sentence"  



does not mean "sentence with no eligibility for discretionary parole".   



                   As we are about to explain in the next section of this opinion, the three- 

                                               



judge panel has the authority to grant enhanced parole eligibility to defendants who are  

                  



subject to presumptive sentencing.  But sentencing judges - even the judges of the  



statewide  three-judge  sentencing  panel  -  have  no  discretion  when  it  comes  to  

                                                                                                       

categorizing a defendant's sentence as "presumptive" or "non-presumptive". 5  

                                                                                                              Rather,  



this classification of sentences is governed by statute.   



                   By definition, any case that comes before the three-judge panel is a case  



that involves a "presumptive" sentence (i.e., a sentence imposed under the provisions of  

                                                                             



AS 12.55.125 - 175) - because the three-judge panel's sole function is to review (and  



potentially relax or exceed) the sentences required under the presumptive sentencing  



statutes.  



          Why we conclude that the three-judge panel has the authority to expand a  

                                                                        

          defendant's eligibility for discretionary parole  



                   As we noted earlier in this opinion, Luckart's original sentencing judge  

                                       



concluded  that  it  would  be  manifestly  unjust  to  sentence  Luckart  to  a  term  of  



imprisonment within the applicable presumptive range (25 to 35 years' imprisonment)  

                                                                     



unless Luckart was granted expanded eligibility for discretionary parole.  The three- 



judge  panel  declined  to  go  along  with  the  judge's  suggestion  because  the  panel  



concluded that it had no authority to expand Luckart's eligibility for parole.   



                   The three-judge panel reached this conclusion by comparing two provisions  



of AS 12.55.175:  subsection (c) and subsection (e).   



          5   See  Reyes v. State , 978 P.2d 635, 641 (Alaska App. 1999).  



                                                         - 9 -                                                      2406  


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

                    The first provision - subsection (c) - declares that the three-judge panel       



"may  in  the  interest  of  justice  sentence  the  defendant  to  any  definite  term  of  



imprisonment up to the maximum term provided for the offense  or  to  any sentence  

                                                                                                              



authorized under AS 12.55.015."   



                    (AS 12.55.015 is the statute that lists all of a court's sentencing options,  

                            



including suspending all or part of a sentence of imprisonment, or allowing the defendant  



to serve the term of imprisonment periodically, or ordering the defendant to engage in  



community service.)  



                                                                                                           6 

                    Since 1980, when presumptive sentencing first took effect,   this Court has  

                                       



consistently construed AS 12.55.175(c) to mean that, when justice requires, the three- 



judge panel has the authority to impose a sentence free of the restrictions that normally  

                                                 



govern  presumptive  sentencing  -  including  the  authority  to  expand  a  defendant's  

                                 



eligibility for discretionary parole.  See Kirby v. State , 748 P.2d 757, 765 (Alaska App.  

                                                                                                        



 1987); State v. Ridgway, 750 P.2d 362, 364 (Alaska App. 1988); and Sikeo v. State, 258  

                                                                                      



P.3d 906, 909 (Alaska App. 2011).   



                    Indeed, the three-judge panel has itself construed AS 12.55.175(c) in this  



same manner (in cases that did not end up being appealed).  Although the three-judge  

                                                                                                           



panel apparently does not maintain a public archive of its decisions, the Alaska Judicial  



Council  has  published  short  summaries  of  the  panel's  decisions.    These  summaries  



contain instances where the three-judge panel announced that it was imposing a "non- 



presumptive"  sentence  -  meaning  that  the  panel  intended  for  the  defendant  to  be  

                                                                                             



eligible  for  discretionary  parole  under  the  rules  that  applied  to  non-presumptive  

                                                                     



sentences.  



          6    See SLA 1978, ch. 166,  25.  



                                                            - 10 -                                                           2406  


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

                        And in the parole eligibility statute, AS 33.16.090, the Alaska Legislature   



has likewise acknowledged the three-judge panel's authority to expand a defendant's  



eligibility for discretionary parole.  The portion of this statute that deals with defendants  

                                                                                       



who receive a single sentence within or below the applicable presumptive range -  



AS  33.16.090(b)(2)  -  declares  that  these  defendants  are  not  eligible  to  apply  for  



discretionary parole until they have served their entire sentence minus good time credit,  

                                                                                                                                          



unless "[they have] been allowed by the three-judge panel under AS 12.55.175 to be  



considered for discretionary parole release".   



                        But  when  the  three-judge  panel  considered  Luckart's  case,  the  panel  

                                             



focused on a second provision of AS 12.55.175 - subsection (e).  This subsection deals  

                                                                                                                 



with  cases  where  the  three-judge  panel  concludes  (1)  that  the  defendant  has  an  



exceptional  potential  for  rehabilitation,  and  (2)  that,  because  of  the  defendant's  



rehabilitative potential, the defendant should receive a term of imprisonment below the  

                                                                      



applicable  presumptive  range  (even  after  this  range  is  adjusted  downward  for  the  

mitigating factor under the rules specified in AS 12.55.155(a)) . 7  8    

                                                                                                                            



                        AS 12.55.175(e) limits the three-judge panel's authority in such cases.  



                                                                                

The statute directs the panel (1) to sentence the defendant within the adjusted applicable  



            7     This interpretation of AS 12.55.175(e) is not obvious from its language - but   



based on the legislative history of the statute, as well as the State of Alaska's concession that   

this is what the Legislature intended the statute to mean, we construed the statute this way  

in Garner v. State, 266 P.3d 1045, 1049 (Alaska App. 2011).   



            8     AS 12.55.155(a) declares that when the low end of the applicable presumptive  

                                                                                    

range is 4 years or less, the proof of mitigating factors authorizes the sentencing court to  

                                                                                      

impose  any  lesser  sentence;  but  when  the  low  end  of  the  applicable  presumptive  range  

exceeds 4 years' imprisonment, a sentencing court can only adjust the presumptive range by  

                                                                                                                   

50 percent for mitigating factors.  In other words, defendants in those latter cases can receive  

                                                          

a sentence below the presumptive range, but the defendant's term of imprisonment must  

                                                                                                                            

equal at least 50 percent of the normal low end of the range.   



                                                                         - 11 -                                                                      2406
  


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

range (even though the panel has concluded that a lesser sentence is warranted), and  

                                                                           



(2) to order the defendant to engage in appropriate rehabilitative programs.  Having  



imposed such a sentence, the panel may then 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 [by the panel]."  



                    At  first  blush,  it  would  seem  that  subsection  (e)  of  AS  12.55.175  has  

                                                                                                     



nothing to do with Luckart's case.  (Luckart's case was not referred to the panel on the  

                                                                                                               



basis of exceptional potential for rehabilitation, nor did the panel think that Luckart  



should receive a sentence of less than 12  years - since the panel sentenced him to  

                                                                                



serve 14 years.)   



                    But the three-judge panel construed subsection (e) as standing for a broad  

                           



limitation on its sentencing authority in all cases not covered by subsection (e).  The  

                     



panel reasoned that, because the Legislature  explicitly granted them the authority to  

                                                                     



expand  a  defendant's  eligibility  for  discretionary  parole  under  the  circumstances  



described in subsection (e), the panel must lack this same authority in all other situations.  

                                                                                                  



                    As both Luckart and the State point out in their briefs to this Court, the  

                                                                                  



three-judge  panel  drew  an  incorrect  inference  from  the  Legislature's  enactment  of  



subsection (e).  There is nothing in the legislative history of subsection (e) to suggest that  



the Legislature wished to strip the three-judge panel of its traditional authority to expand  

                                                                                 



a  defendant's  eligibility  for  discretionary  parole.    Rather,  the  Legislature  wanted  to  

                                                                                                



restrict that authority in a certain group of cases - cases that were referred to the panel  

                   



on the basis of a defendant's exceptional potential for rehabilitation.  



                    Specifically,  the  Legislature  was  worried  that  sentencing  judges  were  



placing too much emphasis on a defendant's potential  for rehabilitation (as opposed to  



demonstrated progress toward rehabilitation), and thus were reducing sentences based  



solely on unproven predictions that the defendant would be rehabilitated.   



                                                            - 12 -                                                       2406
  


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

                         During the legislative hearings on House Bill 396 - the bill that eventually                            



was enacted as SLA 1992, ch. 79,  28, and is now AS 12.55.175(e) - Committee                                



Counsel Laurie Otto described the purpose of the bill to the House Judiciary Committee.  



Ms. Otto explained that when defendants came before the three-judge panel based on a  

         



finding of exceptional potential for rehabilitation, the then-existing version of AS 12.- 



55.175 allowed the panel to reduce the defendants' sentences and relax the normal parole  

                                                                                                                 



restrictions based only on this speculative potential for rehabilitation.  Ms. Otto argued  

                                                                                                                                    



that any expansion of these defendants' parole eligibility should be contingent on the  

                                                                                                                                                      



defendants' successful demonstration of progress toward rehabilitation - so that parole  

                                                                                             



eligibility could be used as an incentive to rehabilitation, and so that, by the time the  



Parole Board was asked to evaluate the defendants' applications for discretionary parole,  

                                                                                               

the Board would have a track record in front of them. 9  

                                                                                                        



                                           

                         In  other  words,  the  Legislature  enacted  AS  12.55.175(e)  under  the  



                                                                       

assumption that the three-judge panel already had the authority to expand a defendant's  



eligibility for discretionary parole, and the purpose of subsection (e) was to restrict that  



authority in the specific circumstances described in the statute.  



                                                                                                                                  

                         For  these  reasons,  we  reject  the  three-judge  panel's  interpretation  of  



                                                                                                                                         

AS 12.55.175(e).  We reaffirm our previous position that subsection (c) of AS 12.55.175  



gives  the  three-judge  panel  the  authority  to  expand  a  defendant's  eligibility  for  



discretionary parole (unless that authority is limited by another statutory provision); and  

                                                                                   



we  hold  that  subsection  (e)  of  the  statute  only  restricts  the  panel's  authority  in  the  

                           



circumstances described in that subsection.  



             9     Ms. Otto's full discussion of this portion of the bill is found in the audio record               



of the House Judiciary Committee meeting of January 15, 1992, at approximately one hour                                 

and ten minutes into the meeting.  



                                                                           - 13 -                                                                             2406  


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

                                     

         An explanation of the provisions of AS 33.16.090(b) - the rules governing  

          a defendant's eligibility for discretionary parole  



                   As we explained at the beginning of this opinion, the three-judge panel  



concluded that it would be unjust to sentence Luckart to a term of imprisonment within  

                                                                  



the applicable presumptive range of 25 to 35 years, but the panel also concluded that it   



had  no  authority  to  follow  the  sentencing  judge's  suggestion  of  granting  Luckart  



enhanced eligibility for discretionary parole.  So, instead, the panel sentenced Luckart  



to a term of imprisonment well below the applicable range:  25 years with 11 years  



suspended (14 years to serve).  



                   Luckart argues that, because the three-judge panel did not expressly restrict  

                                                                                                      



his eligibility for discretionary parole when it announced this 14-year sentence, Luckart  

                                                                  



should be able to apply for discretionary parole after serving one-quarter of this reduced  



sentence (i.e., 3  years).  



                   In order to explain why we reject Luckart's argument, we must present a  

                                                       



detailed explanation of the statute governing parole eligibility, AS 33.16.090.  



                   With  a  few  exceptions  (the  exceptions  listed  in  AS 33.16.090(a)), any  

                                                                                                                        



prisoner who is sentenced to serve at least 181 days is eligible to apply for discretionary  



parole  under  the  provisions  of  AS  33.16.090(b),  unless  the  sentencing  judge  has  

                                                                                                              



specially restricted the defendant's parole eligibility under AS 12.55.115.   



                   AS  33.16.090(b)  is  divided  into  seven  subsections.    The  first  five  

                                                                       



subsections define the parole eligibility of defendants who receive only one sentence,  



depending on which statutory provisions governed the sentencing.  The sixth subsection  



deals with defendants who receive more than one sentence, but whose sentences are  



wholly concurrent. The seventh subsection deals with defendants who receive more than  

                                                                                                     



one sentence, and whose sentences are either wholly or partially consecutive.   



                                                          - 14 -                                                     2406
  


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

                                                                            

                   We will now take a more detailed look at the five subsections that apply to  



defendants who receive a single sentence.  



                   Subsection  (1)  applies  to  defendants  who  are  sentenced  for  one  of  the  

                                                                                                                    



serious  felonies  in  Title  11  that  are  not  covered  by  presumptive  sentencing  -  the  



felonies listed in AS 12.55.125(a) and (b).  



                   Subsections  (2),  (3),  and  (4)  deal  with  defendants  whose  sentencing  is  



governed by the presumptive sentencing statutes, AS 12.55.125 - 175.  We are about to  

                                                                                             



discuss these three subsections at some length.  For present purposes, it is important to  

                                              



note that subsections (2), (3), and (4) do not cover  all defendants who are subject to  

                                                   



presumptive sentencing.  The language of these three subsections expressly excludes  



defendants who are sentenced under AS 12.55.125(d)(1) or under AS 12.55.125(e)(1)  



- (2) - in other words, first felony offenders convicted of a class B felony, and first and  

                                         



second felony offenders convicted of a class C felony.  



                   Subsection (5) is the residual provision; it applies to defendants who are  



sentenced  "under  any  other  provision  of  law".    This  residual  category  includes  all  

                



defendants who are not subject to presumptive sentencing and who are not covered by  



subsection (1) -  i.e., all defendants who are sentenced for a misdemeanor, or for a  



non-classified felony defined in a title of the statutes other than Title 11.   



                   This  residual  category  also  includes  the  defendants  who  are  subject  to  



presumptive  sentencing  but  who  are  not  covered  by  subsections  (2),  (3),  or  (4)  -  

                                     



specifically, first felony offenders convicted of a class B felony, and first and second  

                                                                                    



felony offenders convicted of a class C felony.  



                   We now return to subsections (2), (3), and (4).  We will address these  



subsections slightly out of sequence, to make the explanation more logical.  



                   Subsection (2) actually applies to two distinct groups of defendants.  The  

                                                                 



first group included in subsection (2) comprises those defendants who receive a single  



                                                          - 15 -                                                     2406
  


----------------------- Page 16-----------------------

sentence within the applicable presumptive range set out in AS 12.55.125(i), 125(c),  

               



125(d)(2) - (4), or 125(e)(3) - (4), and who "[have] not been allowed by the three-judge  

                                                                                    



panel under AS 12.55.175 to be considered for discretionary parole release" - either  

                                                                    



because their case was not referred to the three-judge panel at all, or because their case  

                                                          



was referred to the three-judge panel but the panel declined to grant them expanded  

                                                                                              



parole eligibility.  



                    The second group included in subsection (2) comprises those defendants  

                                                               



who,  because  of  mitigating  factors,  receive  a  single  sentence  below  the  applicable  

                                                                                                  



presumptive  sentencing  range  -  either  because  the  original  sentencing  judge  was  



authorized by AS 12.55.155(a) to impose this lesser sentence, or because the case was  

                                                 



referred to the three-judge panel and the panel imposed the lesser sentence - and who  

                                                  



"[have] not been allowed by the three-judge panel under AS 12.55.175 to be considered  



for discretionary parole release" (again, either because their case was not referred to the  



three-judge panel at all, or because their case was referred to the three-judge panel but  

                                                                      



the panel declined to grant them expanded parole eligibility).  



                    All  of  the  defendants  covered  by  subsection  (2)  are  not  eligible  for  



discretionary parole "until [they have] served the term imposed, less good time [credit  

                                                                      



accrued] under AS 33.20.010".   



                    (As a practical matter, any defendant who has served their composite term  



of imprisonment, less accrued good time credit, must be released - either on mandatory  



parole  or  unconditionally  -  pursuant  to  AS  33.20.040(a).    Thus,  the  eligibility  for  

                                                                 



discretionary  parole  granted  by  AS  33.16.090(b)(2)  is  moot  unless  the  defendant  is  

                                                                                               



serving other sentences as well.  See AS 33.16.090(b)(6) - (b)(7).)  



                    Subsection  (4)  covers  defendants  who,  because  of  aggravating  factors,  



receive a single sentence above the applicable presumptive range.  These defendants are  

                                                                                                    



eligible for discretionary parole after they have served an amount of time equal to (1) the  

                                                        



                                                             - 16 -                                                        2406
  


----------------------- Page 17-----------------------

upper end of the applicable presumptive range (less accrued good  time credit), plus  

                                                                                                       



(2)  one-fourth  of  the  portion  of  the  sentence  that  exceeds  the  upper  end  of  the  



presumptive range.  



                    Finally,  subsection  (3)  applies  to  defendants  who  receive  a  single  



presumptive sentence and who  have been granted expanded parole eligibility by the  

                                  



three-judge panel under AS 12.55.175.  These defendants are eligible for discretionary  

                                                             



parole  after  "[they  have]  served  that  portion  of  [their]  active  term  of  imprisonment  

                                        



required by the three-judge panel", but only if the Parole Board determines that they  



have "successfully completed all rehabilitation programs ordered by the three-judge  



panel that were made available to [them]", and that they "would not constitute a danger  

                                                                             



to the public if released on parole".  



                    The actual wording of subsection (3) suggests that the statute has a slightly  

                                                                                         



different scope, so we must pause here to engage in some statutory interpretation.  



                    According to its wording, AS 33.16.090(b)(3) applies to defendants who  

                                                                                          



(1) receive "a single sentence under AS 12.55.125(c), (d)(2) - (4), (e)(3) and (4), or (i)",  

                                                                                                                        



and who (2) are "allowed by the three-judge panel under AS 12.55.175 to be considered  

               



for discretionary parole release during the second half of the sentence".   

                                                



                    This italicized language echoes the restriction contained in AS 12.55.175(e)  



- the provision that limits the three-judge panel's sentencing authority when a case is  

                                                                                              



referred to them on the basis of the defendant's exceptional potential for rehabilitation.  

                                                                                                       



As we explained in the preceding section of this opinion, AS 12.55.175(e) limits the  



three-judge  panel's  normal  authority  to  grant  expanded  parole  eligibility  to  these  



defendants:   the panel can only grant parole eligibility during the second half of the  

                                                                                                     



defendant's sentence.  



                                                            - 17 -                                                       2406
  


----------------------- Page 18-----------------------

                    It   appears       that    the    "second        half    of    the    sentence"        language        in  



AS 33.16.090(b)(3) is an inadvertent holdover from a prior version of AS 33.16.090  

                                                         



that was enacted in conjunction with AS 12.55.175(e).   



                    In 1992, the Legislature enacted both AS 12.55.175(e) and a corresponding  

                                                                                                   



provision  of  AS  33.16.090,  which  the  Legislature  codified  as  subsection  (e)  of  that  

                                                                                          



statute.    See  SLA  1992,  ch.  79,    28  and  32  (respectively).    This  now-repealed  



AS 33.16.090(e) declared  that a defendant could be eligible for discretionary parole  

                                        



during the second half of a sentence imposed under AS 12.55.175(e) if the three-judge  

                                      



panel authorized the parole eligibility, and if the defendant successfully completed any  

                                                         



rehabilitation programs ordered by the panel (and if the defendant would not pose a  



danger to the public).  



                   But in 2005, the Legislature rewrote AS 33.16.090.  See SLA 2005, ch. 2,  



 28.  In this 2005 revision, the Legislature repealed AS 33.16.090(e) and, in its place,  

                                                                                                               



enacted the provision that is currently AS 33.16.090(b)(3).   



                    Subsection (b)(3) of the statute no longer speaks of the parole eligibility  



granted by the three-judge panel under AS 12.55.175(e). Rather, the statute now speaks  

                                                                                                    



more  generally  of  any  parole  eligibility  granted  by  the  three-judge  panel  under  

                                     



AS 12.55.175.  That is, the new version of the statute apparently applies regardless of  

                                    



whether the three-judge panel grants parole eligibility under the special provisions of  



175(e) or, instead, the panel exercises its traditional authority to expand a defendant's  



parole eligibility under subsection 175(c).  



                   But if this is so - if the statute was meant to apply to cases where the  

                                                     



three-judge panel exercises its traditional authority under AS 12.55.175(c) to expand a  

                                                                                                               



defendant's parole eligibility - then the "second half of the sentence" language would  



appear  to  be  an  unintended  remnant  of  the  former  statute.    There  is  nothing  in  the  



legislative history from 2005 to suggest that the Legislature wished to impose a new and  



                                                           - 18 -                                                      2406
  


----------------------- Page 19-----------------------

comprehensive restriction on the three-judge panel's authority to grant expanded parole  

                                                                              



eligibility under AS 12.55.175(c).  



                    We acknowledge that there is an alternative possibility: the possibility that  

                                                                                                      



the  Legislature  inadvertently  substituted  "AS  12.55.175"  for  the  older  reference  to  

                         



"AS 12.55.175(e)" - in other words, that the Legislature dropped the "(e)" by mistake.  



Under this reading, the reference to  the "second  half of the [defendant's]  sentence"  

                                                                                       



makes sense, because this is the very limitation on the three-judge panel's authority that  

                     



is codified in AS 12.55.175(e).  



                    But if we interpreted AS 33.16.090(b)(3) in this manner, it would leave a  

                                                                                                         



gap in AS 33.16.090(b) as a whole.  The statute would no longer contain any provision  

                                                                        



that applied to cases where the three-judge panel exercised its traditional authority to  

                                          



expand a defendant's eligibility for parole under AS 12.55.175(c).    



                    For this reason, we conclude that the change from "AS 12.55.175(e)" to  



"AS 12.55.175" was intentional, and that the continued inclusion of the "second half of  

                                                              



the  sentence"  language  was  not.    We  hold  that  AS  33.16.090(b)(3)  should  be  read  



without  this  "second  half  of  the  sentence"  language  -  although  this  limitation  still  



applies to the cases covered by AS 12.55.175(e).   



          Luckart's argument concerning his eligibility for discretionary parole, and  

          why we reject it  



                    We now return to Luckart's contention that, because the three-judge panel  

                                  



was  silent  on  the  question  of  his  eligibility  for  discretionary  parole  when  the  panel  

                                          



sentenced him to serve 14 years in prison, he is eligible to apply for parole after serving  



one-fourth of this sentence (i.e., 3  years).   



                                                           - 19 -                                                       2406
  


----------------------- Page 20-----------------------

                    Luckart's  argument  is  based  on  a  particular  reading  of  the  Alaska  



presumptive sentencing statutes. Specifically, Luckart argues that when the three-judge  

                                                   



panel accepts a referral from the trial court and imposes the defendant's sentence itself,  

                                                                        



the defendant's sentence is no longer a "presumptive sentence", and thus the defendant's  

                                                                                                



sentence is not subject to the restrictions on parole eligibility that apply to presumptive  

                                                                                                   



sentences.  Instead, Luckart argues, his parole  eligibility is governed by AS 33.16.- 

                                                                          



090(b)(5) - the provision that speaks of defendants who are sentenced under "any other  

                                                                                                                    



provision of law".   



                    We reject this argument for two reasons.  



                    Our first reason for rejecting Luckart's argument is that, as we explained  



earlier in this opinion, all sentences imposed under the presumptive sentencing statutes  

               



(AS  12.55.125  -  175)  are  "presumptive"  sentences  -  and  this  includes  sentences  

                                                                                        



imposed by the three-judge panel.  



                    Luckart,  for  example,  was  convicted  of  attempted  first-degree  sexual  



assault.  This is one of the felonies listed in AS 12.55.125(i) - specifically, in 125(i)(2).  

                                                    



AS 12.55.125(i) declares that defendants convicted of the felonies listed in that statute  

                                                                                         



must be sentenced to a term of imprisonment within the applicable presumptive range,  

                                                                      



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



                    AS 12.55.155 is the statute that allows an individual sentencing judge to  

                                                                                                     



exceed the upper limit of the presumptive range based on aggravating factors, or to  



impose a sentence below the lower limit of the presumptive range based on mitigating  

                                             



factors.  But the resulting sentence is still a "presumptive" sentence; it is imposed under  

                                                                                                          



the  provisions  of  AS  12.55.125,  since  AS  12.55.125  expressly  allows  for  sentence  



adjustments under AS 12.55.155.  



                    Similarly, AS 12.55.165 and 175 are the statutes that allow an individual  



sentencing judge to refer a case to the statewide three-judge sentencing panel, and that  

                                                                                                             



                                                             - 20 -                                                        2406
  


----------------------- Page 21-----------------------

authorize the three-judge panel to impose a sentence outside the normal constraints on  

                                                                                              



an individual sentencing judge's authority - the constraints imposed by AS 12.55.125  

                                                



and AS 12.55.155.  But again, the resulting sentence is still a "presumptive" sentence -  



a  sentence  imposed  under  the  provisions  of  the  presumptive  sentencing  laws,  since  



AS 12.55.125 expressly allows for this type of sentence adjustment by the three-judge  

                                                                                                   



panel.  



                   Thus, Luckart was not sentenced under some provision of law apart from  

                             



the presumptive sentencing statutes.  His sentence was imposed in accordance with the  



presumptive sentencing statutes, and his parole eligibility was therefore governed by  



AS 33.16.090(b)(2) - (4), not AS 33.16.090(b)(5).  



                   Our second reason for rejecting Luckart's argument is that, as we explained  



earlier in this opinion, there is no direct relationship between whether a defendant's  



sentence is a "presumptive sentence" and whether the defendant is eligible to apply for  

                                                                               



discretionary parole while serving this sentence.   



                   The rules governing parole eligibility are not contained in the presumptive  

                                                                               



sentencing  statutes.    Rather,  those  rules  are  found  in  AS  33.16.090.    And  under  

                                                                                          



AS 33.16.090, parole eligibility hinges on a group of factors.  This statute recognizes  



the three-judge panel's authority to expand a defendant's eligibility for discretionary  

                                   



parole.  But the bare fact that a defendant was sentenced by the three-judge panel is not  

                                     



a factor that affects parole eligibility.  



                   In cases where the defendant's sentencing is governed by the presumptive  



sentencing statutes, the defendant's ultimate eligibility for discretionary parole hinges  



on several factors: (1) whether the defendant's sentence was below, within, or above the  

                                                  



applicable  presumptive  range,  (2)  whether  the  defendant  received  more  than  one  



sentence, and (3) whether the three-judge panel affirmatively granted the defendant an  



expanded eligibility for discretionary parole.   



                                                          - 21 -                                                     2406
  


----------------------- Page 22-----------------------

                    Only this last factor falls within the exclusive province of the three-judge  

                                                                                           



panel.    The  other  two  factors  will  be  present  in  all  presumptive  sentencing  cases,  

                                                              



regardless of whether the defendant was sentenced by an individual sentencing judge or  

                     



by the three-judge panel.  



                    For these reasons, we reject Luckart's argument that his parole eligibility  

                                    



is  governed  by  the  provisions  of  AS  33.16.090(b)(5).    In  fact,  his  eligibility  for  



discretionary parole is governed by the provisions of AS 33.16.090(b)(2) - because he  

                                                                                                               



was  subject  to  presumptive  sentencing,  because  he  received  a  sentence  below  the  



applicable  presumptive  range,  and  because  the  three-judge  panel  did  not  grant  him  

                                                                     



expanded eligibility for parole.  



          Conclusion  



                    We hold that AS 12.55.175(c) gives the three-judge panel the authority to  

                                                                                                                   



expand a defendant's eligibility for discretionary parole unless that authority is restricted  

                                                                                                     



by some other statutory provision. We further hold that the mere fact that the three-judge  

                                                                                                              



panel sentences a defendant does not alter the defendant's eligibility for discretionary  



parole.  Rather, when the three-judge panel sentences a defendant who is subject to one  

                                                                                     



of  the  presumptive  ranges  specified  in  AS  12.55.125(i),  125(c),  125(d)(2)  -  (4),  or  



125(e)(3) - (4), the defendant's eligibility for parole is governed by subsections (2) - (4)  

                                                                                                                        



of  AS  33.16.090(b)  -  or,  if  the  defendant  receives  two  or  more  sentences,  by  



subsections (6) - (7) of that statute.  



                    The remaining question is whether we should direct the three-judge panel  

                                                                                                    



to reconsider Luckart's sentence, now  that we have clarified the panel's authority to  

                                                                    



expand a defendant's eligibility for discretionary parole.   



                                                             - 22 -                                                         2406
  


----------------------- Page 23-----------------------

                    As we explained earlier, Luckart's original sentencing judge referred his  



case  to  the  three-judge  panel  because  the  judge  believed  that  a  sentence  within  the  



applicable presumptive range (25 to 35 years) would be unjust unless Luckart was made  

                                             



eligible for discretionary parole.  The three-judge panel did not follow this suggestion  

                                                                                                          



because the panel mistakenly concluded that it had no authority to expand Luckart's  

                                                                                                  



eligibility for parole.  Instead, the panel gave Luckart a sentence below the presumptive  

                                                                               



range - a sentence of 14 years to serve (25 years with 11 years suspended).  



                    Given the fact that Luckart has already received this reduced sentence, it  

                                           



might  seem  unlikely  that  the  three-judge  panel  would  now  also  expand  Luckart's  

                                                                                              



eligibility for parole.  Nevertheless, we believe that the safer path is to give the three- 



judge panel an opportunity to consider this issue.   



                    We therefore remand Luckart's case to the three-judge panel once more,  



so  that  the  panel  can  consider  the  question  of  whether  to  grant  Luckart  expanded  

                                   



eligibility for discretionary parole.  We express no opinion as to what decision the three- 

                                                                                                                   



judge panel should make on this issue.  



                    We do not retain jurisdiction of this case.  



                                                           - 23 -                                                       2406
  

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