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Mund v. State (3/21/2014) ap-2413

Mund v. State (3/21/2014) ap-2413

                                                  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  



TIMOTHY E. MUND,  

                                                                Court of Appeals No. A-10800  

                                  Appellant,                  Trial Court No. 3AN-08-9600 CR  



                          v.  

                                                                        O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                  Appellee.                     No. 2413  -  March 21, 2014  



                 Appeal  from  the  Superior  Court,  Third  Judicial  District,  

                                          

                 Anchorage, Michael L. Wolverton, Judge.  



                 Appearances:  John N. Page III, Assistant Public Defender,  

                                                        

                 and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                 Appellant.  Mary Gilson, 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, writing for the Court.  

                 Judge COATS, concurring.  



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



Constitution and Administrative Rule 23(a).  


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

                     Timothy E. Mund was convicted of several crimes, the most serious of  



which was first-degree assault.  In our previous opinion in this case, Mund v. State ,  



Alaska App. Memorandum Opinion No. 5914 (February 6, 2013), 2013 WL 466421,  



we affirmed Mund's convictions, but we left one issue undecided:  Mund's claim that his  

                                                               



composite sentence of 20 years to serve was excessive.  



                     Because of Mund's many prior felony convictions, he was a "third felony  

                                                                                                    



offender" for presumptive sentencing purposes, and he therefore faced a presumptive  

                 

range of 15 to 20 years' imprisonment for his first-degree assault conviction. 1  

                                                                                                                          



                                                                                        

                     The superior court sentenced Mund to serve 18 years for this crime, and the  



court added a total of 2 more years to serve for Mund's other offenses.  Thus, Mund's  



                                                                                          

composite  sentence  -  20  years  to  serve  -  falls  within  the  applicable  presumptive  



sentencing range for his most serious offense.   



                                                                                   

                     One portion of Alaska's sentence appeal statute, AS 12.55.120(a), declares  



                                            

that felony defendants who receive more than 2 years to serve have the right to appeal  



their sentence, unless that term of imprisonment was an agreed-upon provision of a plea  



bargain.  But in 2005, the Legislature  enacted another subsection, AS 12.55.120(e),  



which limits this right of appeal.  Subsection (e) declares that "[if a] sentence [is] within  

                                                                                        



an applicable presumptive range[, the sentence] may not be appealed to the court of  



appeals ... on the ground that the sentence is excessive."  



                     The  enactment  of  this  new  subsection  (e)  also  affected  this  Court's  



jurisdiction  to  hear  felony  sentence  appeals,  because  the  pertinent  portion  of  our  



      1   First-degree assault is a class A felony (              see  AS 11.41.200(b)), and AS 12.55.125(c)(4)  



prescribes a presumptive sentencing range of 15 to 20 years' imprisonment for third felony   

offenders convicted of a class A felony (other than the sexual felonies covered by AS 12.55.-    

 125(i)).  



                                                                -2-                                                             2413  


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

jurisdictional statute - AS 22.07.020(b) - contains a cross-reference to the provisions  

                                                                                  



of AS 12.55.120. Our jurisdictional statute declares that we have the authority to review  

                                                                                    



felony sentences exceeding two years to serve "except as limited in AS 12.55.120".  



Because of this cross-reference, we lack jurisdiction to hear the appeal of any sentence  



if that appeal is not authorized by the provisions of AS 12.55.120.  



                    Thus, because of the enactment of AS 12.55.120(e), Mund apparently has  

                                                                        



no right to appeal his sentence, and this Court apparently has no jurisdiction to review  

                                                



his sentence.  But this new restriction on the right of sentence appeal, and this new  



restriction on our jurisdiction to hear sentence appeals, conflict with the provisions of  



Alaska Appellate Rule 215(a) enacted by the Alaska Supreme Court.   



                    Subsection   (a)(1)   of   Appellate   Rule   215   tracks   the   language   of  

                                                       



AS 12.55.120(a).  Rule 215(a)(1) declares that felony defendants have the right to appeal  



any sentence longer than 2 years to serve (unless the defendant's term of imprisonment  



was an agreed-upon provision of a plea bargain).  This right of appeal applies even when  

                                                                                        



a defendant's sentence is within the applicable presumptive range. And subsection (a)(4)  

                                                                                                  



of Rule 215 declares that these sentence appeals "must be taken to the court of appeals".  

                                                                                                                



                    Because of this conflict between the statutes and the court rule, we asked  

                                                                                                                   



the parties to brief the questions of (1) Mund's right to appeal his sentence, and (2) this  

                                                          



Court's authority to review Mund's sentence for excessiveness.   Here, in a nutshell,  

                                                                                                    



are our conclusions:  



                    AS 12.55.120(e) ostensibly changed Alaska law in three ways.  First, the  

                                                                                             



statute eliminated the right of sentence appeal for defendants who receive sentences  



within the applicable presumptive range.  Second, the statute apparently eliminated this  

                                                                                 



Court's jurisdiction to hear such appeals - because our sentence appeal jurisdiction  



statute, AS 22.07.020(b), defines our jurisdiction according to which defendants have a  

                                                                                          



right of appeal under AS 12.55.120.  And third, AS 12.55.120(e) expressly recognized  

                        



                                                              -3-                                                        2413
  


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

the right of these defendants to seek discretionary review of their sentences by filing a  

                           



petition either in the supreme court or in this Court.  (The Legislature left this choice up  

                                                                               



to the supreme court.)   



                    The Legislature has sole authority to define this Court's jurisdiction.  Thus,  

                                                                                                                          



to the extent Appellate Rule 215(a) purports to give this Court jurisdiction over sentence  



appeals when the Legislature has taken that authority away, the court rule has no legal  

                                                                                                          



effect.  The Alaska Supreme Court can not grant this Court additional jurisdiction by  



court rule.  



                    But  on  the  question  of  which  defendants  have  a  right  to  appeal  their  



sentence, Appellate Rule 215(a) takes precedence over any conflicting statute.  Thus, in  

                                                                                    



order for the Legislature to eliminate the right of sentence appeal for defendants whose  

                                                                                                   



sentence is within the applicable presumptive range, the Legislature had to exercise its  

                                                                                      



authority under Article IV, Section 15 of the Alaska Constitution to amend Appellate  



Rule 215(a) to incorporate this new restriction on the right of sentence appeal.  The  

                                                                                                               



Legislature neglected to do  that, so the broader right of sentence appeal codified in  

                                            



Appellate Rule 215(a) continues to govern.  Felony defendants who receive a sentence  

                                                                    



within  the  applicable  presumptive  range  continue  to  have  the  right  to  appeal  their  



sentence, as long as their sentence exceeds two years to serve and their sentence was not  

                                                                 



an agreed-upon provision of a plea bargain.  



                    This leaves us in a quandary:  Given the fact that the Legislature failed to  

                                                                                                     



achieve its goal of eliminating these defendants' right of sentence appeal, would the  



Legislature still wish to deprive this Court of jurisdiction to hear these sentence appeals  

                                                       



- a result which would send these appeals to the supreme court?  



                    (See AS 22.05.010(b), which declares that when litigants have a right of  



appeal, that appeal is "to the supreme court [as] a matter of right ... in [all] actions and  

                                                                                       



                                                               -4-                                                         2413
  


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

proceedings  from  which  there  is  no  right  of  appeal  to  the  court  of  appeals  under  



AS 22.07.020[.]")  

                             



                   We  have  examined  the  legislative  history  of  AS  12.55.120(e),  and  we  



conclude  that  the  Legislature  would  not  wish  to  limit  this  Court's  sentence  appeal  

                                                                     



jurisdiction  unless,  at  the  same  time,  the  restriction  on  the  right  of  sentence  appeal  



codified in AS 12.55.120(e) also took effect -  i.e., unless defendants who received  

                       



sentences within the applicable presumptive range were deprived of the right to appeal  

                                                                                                 



their sentences.  



                   We therefore conclude that no provision of AS 12.55.120(e) should be  



given effect.  Because the Legislature failed to amend Appellate Rule 215, defendants  

                                 



ostensibly covered by AS 12.55.120(e) retain their pre-existing right to appeal their  



sentences, and this Court retains its jurisdiction to hear those appeals.  



                   We will now explain our analysis in much greater detail.  Readers who are  

                                       



already  convinced  that  we  have  correctly  described  Alaska  law,  and  that  we  have  



accurately discerned the intent of AS 12.55.120(e), may proceed directly to the final  



section  of  this  opinion,  where  we  analyze  whether  Mund's  composite  sentence  of  



20 years' imprisonment is excessive.  



          The legal background of this controversy, part 1:  principles of sentence  

                                                                                                 

          review under Alaska law  



                                                       2 

                   In 1968, in Bear v. State ,   the Alaska Supreme Court held that it did not  



have the authority to review a lawfully imposed sentence to determine whether it was  



     2    439 P.2d 432 (Alaska 1968).  



                                                           -5-                                                       2413  


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

                                                    3  

excessive  or  overly  lenient.                          In  response,  the  Alaska  Legislature  took  action  the  



following year to authorize sentence appeals.  See SLA 1969, ch. 117,  1 and 4.  



                        In section 1 of this 1969 session law, the Legislature amended the supreme  

                                                                                                                                            



court's jurisdictional statute by adding a provision that expressly authorized the court to  

                                                                                                                   

review criminal sentences.  See AS 22.05.010(b) (1969 version). 4  

                                                                                                                       And in section 4 of  



                                                                                                                                       

the session law, the Legislature enacted the original version of AS 12.55.120 - a statute  



giving certain criminal defendants the right to appeal their sentence.   



                        As originally enacted, AS 12.55.120(a) declared that a defendant could  

appeal any sentence that exceeded one year's imprisonment. 5  

                                                                                                               But seven years later, in  



           6 

1976,                                                                     

             the supreme court enacted a court rule, Appellate Rule 21(a), which defined the  



      3     Bear , 439 P.2d at 435.  



      4     As enacted in 1969, AS 22.05.010(b) stated (in pertinent part):  "The supreme court       



has  jurisdiction  to  hear  appeals  of  sentences  of  imprisonment  lawfully  imposed  by  the  

superior  courts  on  the  grounds  that  the  sentence  is  excessive  or  too  lenient  and,  in  the  

exercise  of  this  jurisdiction,  may  modify  the  sentence  as  provided  by  law  and  by  the  

constitution of this state."   (This statute is quoted in  Wharton v. State, 590 P.2d 427, 431  

(Alaska 1979).)  



            In  1980,  when  the  Legislature  created  this  Court  to  handle  criminal  appeals,  the  

                                                                                                         

Legislature deleted the sentence review provision from the supreme court's jurisdictional   

statute and placed corresponding sentence review provisions in this Court's jurisdictional  

statute.  See SLA 1980, ch. 12,  1 and 2.  



      5     As enacted in 1969, AS 12.55.120(a) stated:  "A sentence of imprisonment lawfully     



imposed by the superior court for a term or for aggregate terms exceeding one year may be     

                                                         

appealed to the supreme court by the defendant on the ground that the sentence is excessive.  

By appealing a sentence under this section, the defendant waives the right to plead that by  

a revision of the sentence resulting from the appeal he has been twice placed in jeopardy for  

the  same  offense."    (This  statute  is  quoted  in  Wharton  v.  State,  590  P.2d  427,  429  n.  4  

(Alaska 1979).)  



      6     See Supreme Court Order No. 218 (effective January 15, 1976).  



                                                                          -6-                                                                    2413
  


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

right of sentence appeal in a manner inconsistent with the statute.  Appellate Rule 21(a)     



                                                                                                                              7  

declared that defendants had the right to appeal any sentence of 45 days or more.     



                     In  Wharton v. State, 590 P.2d 427 (Alaska 1979), the supreme court held  



that the appellate rule took precedence over the sentence appeal statute.  The court gave  

                                                                                                                



two discrete reasons for its decision.   



                     First,  the  court  asserted  that  the  Bear  decision  was  wrong  -  that  the  

                                                                                                                     



supreme  court,  in  fact,  possessed  the  inherent  power  to  review  criminal  sentences,  



because Article IV, Section 2 of the Alaska Constitution declares that the supreme court  



has "final appellate jurisdiction" in all judicial proceedings.  Id. at 428-29.  



                     Second,  the  supreme  court  reasoned  that,  once  the  Legislature  granted  



defendants a right of sentence appeal (albeit a limited right), the court had the authority  



to "expand[] that right" by court rule.  Id. at 429.  



                     In  Coffman v. State, 172 P.3d 804 (Alaska App. 2007), this Court was  



required to revisit and interpret the supreme court's decision in Wharton.  We concluded  

                                                                                



that  Wharton stood for two fundamental propositions.   



                     First, we declared that the  Wharton decision "rests on the concept ... that,  

                                                                                                               



even in the absence of authorizing legislation, the supreme court has the power to review  

                                                                                                   



any  judicial  decision  made  in  a  criminal  case  -  including  the  sentencing  judge's  



exercise of sentencing discretion":  



                       

                               [E]ven though the Alaska statutes governing sentence  

                     appeals were originally thought to confer a special right of  

                     appeal  (and  to  expand  the  supreme  court's  jurisdiction  

                     accordingly), a defendant's substantive right to seek appellate  

                     review  of  a  sentence  for  alleged  excessiveness,  and  the  



     7    The text of the rule is quoted in  Wharton v. State, 5                      90 P.2d 427, 429 (Alaska 1979).  



                                                                 -7-                                                              2413  


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

                    supreme court's authority to hear that claim, actually exist  

                    irrespective of these statutes.  

                       

 Coffman, 172 P.3d at 809 (emphasis in the original).  



                    Second, we declared that, because the supreme court has the inherent power  



to review criminal sentences, even in the absence of legislation, Alaska's sentence appeal  

                                             



statutes "are in fact addressed solely to matters of procedure - or, in the case of the  

                     



 [jurisdictional]  provisions  found  in  AS  22.07,  the  issue  of  the  division  of  appellate  



jurisdiction between this Court and the supreme court."  Id. at 809.  We explained:   



                      

                              [T]he  truth  of  the  matter  is  that  every  defendant  in  

                    Alaska has the right to seek appellate review of their sentence  

                    on the ground that it is excessive.  The effect of our sentence  

                                                                                        

                    appeal  statutes  is  not  to  confer  or  withhold  this  right,  but  

                                                           

                    rather to define the manner in which the appellate review is  

                                                                                  

                    invoked and conducted.  



Ibid . (emphasis in the original).  



                    By "the manner in which appellate review is invoked and conducted", we  

                                                                                                           



were referring to the two main components of sentence review law.   



                    The first of these components is jurisdictional:  identifying the appellate  

                                                                                                               



court that is authorized to review the sentence.   



                    In  Wharton, the supreme court declared that it had the inherent authority  



to review criminal sentences, stemming from its constitutional role as the final appellate  

                                                                                                    



tribunal under Article IV, Section 2.  But this Court has no such inherent power:  our  

                                                          



existence does not derive from the Alaska Constitution, but rather from an act of the  

                                                                  

Legislature. 8  

                       



     8    SLA 1980, ch. 12,  1.  



                                                               -8-                                                           2413  


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

                     Because we are a creature of statute, our jurisdiction is defined by statute  

                                                                                                                        



- in particular, the provisions of AS 22.07.020.  The Legislature has the power to  



restrict  this  Court's  authority  to  review  sentences,  either  by  limiting  our  review  to  



 specific types of cases or sentences, or by excluding specific types of cases or sentences  

                                                                                  



 from our review.  



                     The second component of sentence review law is procedural:  the rules that  

                                                                                              



 specify whether a particular class or group of defendants has the right to "appeal" their  

                                                                    



 sentence  or,  instead,  only  the  right  to  "petition"  an  appellate  court  to  review  their  

                                                  



 sentence.   



                     The right of "appeal" means the right to require an appellate court to review  

                                                                                              



the sentencing court's decision.  The right of "petition", on the other hand, means the  

                                                                                               



right to request an appellate court to review the sentencing decision - a request which  

                                                                                            



the appellate court may grant or deny as it sees fit.  See Rozkydal v. State , 938 P.2d 1091,  

                                                                                                                



 1094 (Alaska App. 1997).  



                     As  we  explained  in  Coffman,  the  Alaska  Supreme  Court's  decision  in  

                                                                                         



 Wharton implicitly stands for the proposition that, once a right of sentence appeal has  



been created, the Legislature's enactments regarding the right of sentence appeal are all  

                                                                                   



procedural .  Coffman, 172 P.3d at 809.  And because the sentence appeal statutes are  

                                            



procedural, the provisions of these statutes are superseded by any corresponding and  

                                                                                              



 conflicting provisions of the court rules - unless and until the Legislature exercises its  

                                                                                                                    



 constitutional authority under Article IV, Section 15 to amend the conflicting court rules.  

                                      



                     (Article IV, Section 15 declares that, to amend a court rule, the Legislature  

                                                                                             



must pass the amendment by a two-thirds vote of the members elected to each house.  

                                                



In addition, the Legislature must adhere to the procedure specified in Leege v. Martin ,  

                                                                                                                        



 379 P.2d 447, 451 (Alaska 1963).  Most notably, the Legislature must expressly state its  

                                                                                                    



 intention to amend the court rule.)  



                                                                 -9-                                                          2413
  


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

           The legal background of this controversy, part 2: the Alaska Legislature's             

           revisions of the right of appeal in 1993 and 1995  



                      In  1993,  the  Legislature  amended  this  Court's  jurisdictional  statute  by  



deleting certain limitations on the government's right of appeal in criminal cases.  See  

                                                                                                                           



SLA 1993, ch. 71,  2.  But at that time, Appellate Rule 202(c) still contained the old  



limitations on the government's right of appeal. To resolve this conflict, the Legislature  

                                                                                    



exercised its authority under Article IV, Section 15 of the Alaska Constitution to repeal  

                                                                                        



Appellate Rule 202(c).  See SLA 1993, ch. 71,  6.  



                      In 1995, the Legislature took action to limit felony defendants' right of  



sentence appeal.  The Legislature amended AS 12.55.120(a) to specify that a felony  



sentence could not be appealed unless (1) the sentence exceeded 2 years to serve and  

                

(2) it was not a negotiated provision of a plea bargain. 9                                   See SLA 1995, ch. 79,  7.  

                                                                                              



     9     This 1995 amendment brought AS 12.55.120(a) to its present form:  



                                                                                                                    

           A sentence of imprisonment lawfully imposed by the superior court for a term or  

     for aggregate terms exceeding two years of unsuspended incarceration for a felony  

     offense or exceeding 120 days for a misdemeanor offense may be appealed to the  

                                    

     court of appeals by the defendant on the ground that the sentence is excessive, unless  

                                                                     

     the sentence was imposed in accordance with a plea agreement ... and that agreement  

     provided for imposition of a specific sentence or a sentence equal to or less than a  

      specified maximum sentence.  If the superior court imposed a sentence in accordance  

     with a plea agreement that provided for a minimum sentence, the defendant may  

     appeal only that portion of the sentence that exceeds the minimum sentence provided   

                                                                       

     for in the plea agreement and that exceeds two years of unsuspended incarceration for  

                                                                                                    

     a felony offense or 120 days of unsuspended incarceration for a misdemeanor offense.  

     By appealing a sentence under this section, the defendant waives the right to plead  

     that by a revision of the sentence resulting from the appeal the defendant has been  

     twice placed in jeopardy for the same offense.  



                                                                   -10-                                                             2413
  


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

                    At the same time, the Legislature made a conforming amendment to this  

                                                                                                                         



Court's  jurisdictional  statute,  AS  22.07.020(b),  so  that  this  Court  no  longer  had  



jurisdiction to review a sentence unless it met the new criteria of AS 12.55.120(a).   See  

                                                             



SLA 1995, ch. 79,  11-12.  



                    As part of this same session law (SLA 1995, ch. 79,  11), the Legislature  

                                 



made one other notable change to this Court's jurisdictional statute - a change that will  

                                                                                                            



be important to our discussion later in this opinion.  The Legislature inserted the words,  

                                                          



"Except as limited in AS 12.55.120", at the beginning of AS 22.07.020(b):  



                      

                              (b)  Except as limited in AS 12.55.120, the court of  

                    appeals  has  jurisdiction  to  hear  appeals  of  unsuspended  

                    sentences of imprisonment exceeding two years for a felony  

                    offense ... .  

                                                      

                    Technically speaking, nothing in AS 12.55.120 "limits" the jurisdiction of  

                                                                                                              



this Court.  AS 12.55.120 does not speak to the jurisdiction of this Court; rather, the  

                                                                                                  



statute defines the right of sentence appeal.  However, the obvious purpose of the new  

                                                                                    



language  was  to  eliminate  the  need  for  the  Legislature  to  keep  making  conforming  

                                                                                       



amendments to this Court's jurisdictional statute every time the Legislature altered the  

                                                                                            



right of sentence appeal defined in AS 12.55.120.  Thus, after 1995, any change in a  



defendant's right of sentence appeal under AS 12.55.120 will work a corresponding  

                                                                                                 



change in this Court's sentence review jurisdiction.   



                    The Legislature's 1995 amendments of AS 12.55.120 and AS 22.07.020  



once  again  created  a  conflict  with  the  existing  appellate  rules.    The  rule  governing  

          



sentence appeals, Appellate Rule 215(a), codified the old provision discussed in Wharton  



- the provision giving a right of sentence appeal to all defendants who received 45 days  

                                                                          



or more to serve.  So once again, to resolve this conflict, the Legislature exercised its  



                                                              -11-                                                         2413
  


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

constitutional power to repeal (and re-write) Appellate Rule 215(a) to make it conform  



to the new limitations codified in AS 12.55.120(a).  See SLA 1995, ch. 79,  20.  



                   A few months later, the supreme court promulgated a revised version of  



Appellate Rule 215(a) which differed somewhat from the structure and wording chosen  

                                                                                                       



by  the  Legislature,  but  which  incorporated  all  of  the  Legislature's  substantive  

changes. 10  

                     



                   In particular, the supreme court did not attempt to alter the Legislature's  



new restrictions on the right of sentence appeal; it  incorporated those restrictions in  

                                                                             



Appellate Rule 215(a)(1).  But in addition, the supreme court wrote two new rules -  



Appellate Rule 215(a)(2) [now renumbered as 215(a)(5)] and Appellate Rule 403(h) -  

                                                                    



to govern a new form of appellate litigation:  the petition for sentence review, which was  

                                    



available to all defendants whose sentence was not appealable under the provisions of  



AS 12.55.120 and the new version of Appellate Rule 215(a)(1).  



                   This new petition for sentence review is premised on one of the principles  

                                                                           



of the  Wharton decision:   the principle that the supreme court has the constitutional  

                                        



authority to review any judicial decision, including sentencing decisions.  The Legisla- 

                                                                            



ture might take away a defendant's right of sentence appeal (i.e., the procedural right to  

                                                                            



demand appellate review of their sentence), and the Legislature might take away  this  

                                           



Court's jurisdiction to review the defendant's sentence, but the supreme court retains the  

                                                                                                        



discretionary authority to review the sentence.   



                   Compare State v. Browder, 486 P.2d 925, 929-931 (Alaska 1971), where  



the supreme court held that even when a statute restricted the government's right of  



appeal  in  criminal  cases,  the  government  was  nevertheless  entitled  to petition   the  

                              



supreme court to review any trial court decision in a criminal case.  



     10   See Supreme Court Order No. 1226 (effective January 22, 1996).  



                                                            -12-                                                         2413  


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

                    Indeed, when the Legislature re-defined the right of appeal in criminal cases  



in 1993 and 1995, one salient aspect of the Legislature's actions is that, in both instances,  

                                                           



the  Legislature  implicitly  acknowledged  the  principle  behind  the  supreme  court's  

                                                                  



decision in  Wharton.  



                    As we have explained, Wharton stands for the proposition that, once a right  

                                                                                



of appeal is enacted, the provisions governing that right of appeal - for instance, the  



rules specifying how long a defendant's sentence must be to trigger the right of appeal  

                                                                                                                       



- are procedural.  And because these provisions of law are procedural, when there is a  

                                      



conflict between a court rule and a statute, the court rule will prevail -  unless the  

                                                                                                                     



Legislature has exercised its constitutional authority to repeal, amend, or re-write the  

                                                                                                                   



court rule that contained the contrary provision.  



                    That  is  precisely  what  the  Legislature  did  in  1993  and  1995:    they  



eliminated the conflicting appellate rule - in one instance by simply repealing the rule,  

                                                                                               



and in the other instance by re-writing it.  



                    However, as we explain in the next section of this opinion, the Legislature  

                                         



failed to make a conforming amendment to Appellate Rule 215(a) when, in 2005, they  

                                                                



amended  AS  12.55.120  by  adding  subsection  (e),  a  subsection  that  contains  new  

                                                                                                        



restrictions on the right of sentence appeal.  This means that Appellate Rule 215(a) is in  

                                                                                                            



conflict with the current version of AS 12.55.120 - and this conflict is the source of the  

                                                                                                                             



present legal controversy.  



                                                               -13-                                                         2413
  


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

          The Alaska Legislature's enactment of AS 12.55.120(e) in 2005 - and the  

                                                                          

          creation of the conflict between the sentence appeal statute, AS 12.55.120,  

          this  Court's  jurisdictional  statute,  AS  22.07.020,  and  the  court  rule  

         governing sentence appeals, Appellate Rule 215(a)  



                   We  turn  now  to  the  legislative  session  of  2005,  when  the  Legislature  



amended AS 12.55.120 to add a new restriction on the right of sentence appeal.  This  



time, the Legislature did not amend subsection (a) of the statute; instead, the Legislature  

                                                                                                        



added a new subsection (e).  See SLA 2005, ch. 2,  7.    



                   The first sentence of subsection (e) declares that a defendant has no right  

                                                                                                            



to appeal a sentence that lies within the applicable presumptive range for the offense:  



                     

                             A sentence within an applicable presumptive range set  

                   out   in   AS   12.55.125[,]   or   a   consecutive   or   partially  

                                      

                   consecutive   sentence   imposed   in   accordance   with   the  

                   minimum  sentences  set  out  in  AS  12.55.127  [a  statute  

                   that requires consecutive sentencing under certain circum- 

                   stances] may not be appealed to the court of appeals under  

                                                                                      

                   this section or AS 22.07.020 [i.e., the statute defining this  

                                                

                   Court's  jurisdiction]  on  the  ground  that  the  sentence  is  

                   excessive.  



                   Although this portion of the statute declares that such sentences may not  



be appealed "to the court of appeals", the legislative history of the statute demonstrates  

                                         



that the legislature intended to completely eliminate the right of sentence appeal for these  

                                                                                                                 



defendants, including appeals to the supreme court.   



                   As initially proposed, subsection (e) comprised a single sentence, and it  



would have completely eliminated judicial authority to reverse a sentence within the  



applicable presumptive range, either by appeal or by petition:  



                     



                                                           -14-                                                      2413
  


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

                                 (e)     A  sentence  reviewed  by  the  [court  of  appeals]  

                      under [AS 12.55.120] and AS 22.07.020, ... or a sentence  

                                                         

                      reviewed by petition [to the supreme court] under court rules,  

                                                                                            

                      may not be reversed as excessive ... if the sentence is within  

                                                                                         

                      an applicable presumptive range set out in AS 12.55.125, or  

                      is a consecutive or partially consecutive sentence imposed in  

                      accordance with the minimum sentences set out in AS 12.- 

                      55.127.  



Senate Bill 56 (24th Legislature) (original version of January 14, 2005).   



                      An undated sectional analysis of this proposed statute, distributed to the  



                                                                                                                                

Senate  Judiciary  Committee,  described  the  statute  as  "mak[ing]  it  clear  that  the  



[appellate] courts in Alaska cannot reverse a sentence as excessive if a judge imposes  

[the] sentence within [the applicable] statutory [presumptive] range". 11  

                                                                                                                       



                      But some legislators expressed concern that an absolute prohibition on  

appellate review of sentences would be unconstitutional. 12  This view was endorsed by  

                                                                                                  

a legislative research report 13 and by a memorandum written by the Public Defender  



Agency  to  the  House  Judiciary  Committee 14   -  each  suggesting  that  an  absolute  



      11   See the undated sectional analysis of Senate Bill 56 (24th Legislature), contained in       



the Senate Judiciary Committee file on Senate Bill 56.  



      12   Minutes of the House Judiciary Committee concerning the Committee Substitute for   



Senate Bill 56:  January 31, 2005 @ 2:17:22 and February 2, 2005 @ 1:53:57.  



      13   Patricia Young, Manager, Legislative Research Services,                                    Right of Appeal Based on  



the Excessiveness of a Criminal Sentence                         (January 31, 2005) - a legislative research report   

                                                             

prepared for Senator Gene Therriault. This document, Report No. 05.141, is contained in the  

House Judiciary Committee file on Senate Bill 56.  



      14  

                           

           Linda K. Wilson, "Memorandum to the House Judiciary Committee on constitutional  

                                         

concerns raised by SB 56 and HB 78" (January 31, 2005), contained in the House Judiciary  

Committee file on SB 56.  



                                                                    -15-                                                              2413
  


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

prohibition on sentence review would run afoul of this Court's decision in                                        Rozkydal v.  

State . 15  



                    (In  Rozkydal ,  this  Court  held  that  the  restrictions  on  sentence  appeals  

                                                   



codified in AS 12.55.120(a) did not limit a defendant's right to petition the supreme  

court for discretionary review of their sentence. 16 )  



                    Based on these concerns, Representative Les Gara proposed an amendment  



that would allow defendants who received sentences within the applicable presumptive  

                                                                                  



range  to  file  petitions  for  sentence  review  in  the  supreme  court.    Specifically,  this  

                                                         



proposed  amendment  stated  that  a  sentence  within  the  presumptive  range  "may  be  



reviewed by the supreme court on the grounds that it is excessive through a petition filed  

                                                                                

under rules adopted by the supreme court." 17  

                                                                       



                                                                     

                    (As we have already explained, the supreme court had already promulgated  



                                    

court rules in 1996 - Appellate Rule 215(a)(5) and Appellate Rule 403(h) - which  



                                                            

provide that if a defendant receives a sentence that is not appealable under Appellate  



Rule 215(a)(1), the defendant can petition the supreme court to review the sentence.)  



                    The House Finance Committee proposed yet another version of subsection  

                                                                                                     

(e) - a version that was ultimately enacted. 18                                                               

                                                                        In this new version, the language about  



                                                                  

allowing defendants to file sentence review petitions in "the supreme court" was changed  



to language that allowed these petitions to be filed in "an appellate court" - with the  



     15   938 P.2d 1091 (Alaska App. 1997).
  



     16   938 P.2d at 1094-95.
  



     17   Minutes of the House Judiciary Committee concerning the Committee Substitute for
   



Senate Bill 56:  February 4, 2005 @ 1:17:20.  



     18  

                                                        

          Minutes of the House Finance Committee concerning the Committee Substitute for  

Senate Bill 56:  February 16, 2005 @ 1:45:45.  



                                                               -16-                                                         2413
  


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

supreme court having the authority to select the appropriate appellate court through court   



        19  

rule.      



                                           

                   The purpose of this change was to allow sentence review petitions to be  



                                                                         

heard by this Court.  The only person to  testify  about this proposed change was an  



administrative attorney for the Alaska Court System, who told the Committee that he  



favored the proposed amendment because it would allow this Court (rather than the  



supreme court) to conduct the discretionary sentence review, since this Court had more  

                                                                                         



expertise in criminal matters. After hearing the administrative attorney's comments, the  

                                                                                          

House Finance Committee approved the amendment. 20  

                                                                                          

                                                                                And, in this form, the proposed  



statute was enacted as SLA 2005, ch. 2,  7.  



                   Here is the final (and current) wording of AS 12.55.120(e):  



                     

                                                   

                             (e) A sentence within an applicable presumptive range  

                                       

                   set out in AS 12.55.125 or a consecutive sentence imposed in  

                   accordance         with      the    minimum          sentences        set    out    in  

                   AS 12.55.127 may not be appealed to the court of appeals  

                   under this section or AS 22.07.020 on the ground that the  

                                                                                              

                   sentence  is  excessive.              However,  the  sentence  may  be  

                   reviewed  by  an  appellate  court  on  the  ground  that  it  is  

                                                                              

                   excessive through a petition filed under rules adopted by the  

                   supreme court.  



     19   See House Committee Substitute for Committee Substitute for Senate Bill 56 (FIN),  



section 7 -  available at:  

     http://www.legis.state.ak.us/basis/get_bill_text.asp?hsid=SB0056D&session=24 .  



     20   Minutes of the House Finance Committee for February 16, 2005 @ 1:47:03.  



                                                            -17-                                                         2413  


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

                                                                                                                21 

                    This session law was passed by the Senate in an 18-0 vote,    and by the  

House in a 36-0 vote. 22  

                                     However, the session law did not conform to the rule announced   



in Leege v. Martin           because it did not contain any language specifying the Legislature's  



intent to amend Appellate Rule 215(a).   



                    Because  SLA  2005,  ch.  2  did  not  expressly  declare  the  Legislature's  

intention to amend Appellate Rule 215(a), that court rule remained unchanged. 23  

                                                                                                                             And,  



as  we  have  explained,  Appellate  Rule  215(a)  was  written  in  1995  to  codify  the  



restrictions on the right of sentence appeal contained in AS 12.55.120 (a), not the new  

                                                                                                                         



restrictions contained in subsection (e).  To this day, Appellate Rule 215(a) continues to  



reflect the pre-2005 sentence appeal law.  



                    Thus, under Appellate Rule 215(a)(1), if a felony defendant receives a  



sentence of more than 2 years to serve, and if this sentence was not an agreed-upon  



provision of a plea bargain, the defendant is entitled to appeal the sentence - regardless  

                                                                                              



of whether the sentence lies within the applicable presumptive range.   



                    Appellate Rule 215(a)(4) declares that these sentence appeals must be taken  



to this Court - but this provision of the rule now contravenes the provisions of this  

                                                                                                    



Court's jurisdictional statute.   



                    As we explained in the opening section of this opinion, AS 22.07.020(b)  

                                                                                                           



states that this Court's jurisdiction to hear sentence appeals is limited to those appeals  

                                                                                                 



authorized by AS 12.55.120.  Because AS 12.55.120(e) declares that felony defendants  

                                                                                                    



     21   2005 Senate Journal 429, available at:                       http://w w w .legis .sta te.a k .u s/b a sis /  



get_jrn_page.asp?session=24&bill=SB56&jrn=0439&hse=S.  



     22   2005 House Journal 480, available at:                        h t tp : //w w w .le g i s.sta te .a k .u s/b asis /   



get_jrn_page.asp?session=24&bill=SB56&jrn=0480&hse=H.  



     23   See  Leege v. Martin , 379 P.2d 447, 451 (Alaska 1963).  



                                                               -18-                                                         2413
  


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

have  no  right  to  appeal  their  sentence  if  the  sentence  falls  within  the  applicable  

         



presumptive sentencing range, the enactment of AS 12.55.120(e) effectively stripped this  



Court of its authority to hear the sentence appeals of defendants covered by this statute.  

                                                                               



                    It is now our task to resolve these conflicts if we can.  



          The  two  aspects  of  AS  12.55.120(e)  -   one  procedural,  the  other  

                                                                            

         jurisdictional  



                    The  legislature's  enactment  of  AS  12.55.120(e)  ostensibly  changed  



Alaska's law of sentence review in three major respects:   



                    (1)  The first sentence of the statute contains a new restriction on felony  



defendants'  right  of  sentence  appeal.    Under  this  new  restriction,  even  if  a  felony  

                                                                                      



sentence would be appealable under the provisions of AS 12.55.120(a) (i.e., even if the  

                                                                                                                  



sentence exceeds 2 years to serve), the sentence can not be appealed if it is within the  

                                                                                                                  



applicable presumptive range.   



                    (2)  This Court's jurisdictional statute, AS 22.07.020(b), declares that this  

                                              



Court's sentence review jurisdiction is linked to the right of sentence appeal codified in  



AS 12.55.120.  Thus, the Legislature's enactment of the new restriction on the right of  

                                                                                            



sentence appeal in AS 12.55.120(e) concomitantly deprived this Court of the authority  



to hear any such sentence appeals.  



                    (3)  The second sentence of subsection (e) declares that, in cases where the  

                                                              



new restriction codified in subsection (e) bars the appeal of a sentence, the supreme court  

                                                                                       



is nevertheless authorized to enact court rules to allow these defendants to petition  for  

                                         



sentence review - either to the supreme court itself or to this Court, depending on the  

                                                                                                        



supreme court's preference.  



                                                             -19-                                                        2413
  


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

                    (a)  The first change:  the new restriction on the right of appeal  



                    With  regard to the new restriction on the right of sentence appeal, this  

                             



change  in  the  law  is  "procedural"  for  purposes  of  the  supreme  court's  decision  in  



Wharton and this Court's decision in Coffman.  This means that the statutory restriction  

                                                                                         



must yield to a contrary court rule.   



                    As we explained earlier, one of the major issues confronting the supreme  

                                                                                   



court in Wharton was whether to enforce the restriction on sentence appeals codified in  

                                                                                        



AS  12.55.120  (sentences  exceeding  1  year)  or,  instead,  to  enforce  the  competing  

                                                                                         



restriction contained in the corresponding appellate rule (sentences of 45 days or more).  

                                                               



Wharton, 590 P.2d at 428-29. The supreme court treated this distinction as a procedural  

                                                                          



one.  The court declared that, once the Legislature granted defendants a right of sentence  



appeal, the supreme court had the authority to "expand[] that right" by court rule.  Id. at  



429.  



                    This does not mean that the supreme court necessarily has the last word.  

                                                                                                      



Under Article IV, Section 15 of the Alaska Constitution, the Legislature has the power  



to change court rules by a two-thirds vote of the members elected to each house.  



                    However, under Leege v. Martin , 379 P.2d 447, 451 (Alaska 1963), when  

                                                                                     



the Legislature wishes to change a court rule, the Legislature must draft its bill so that  



it  contains  a  provision  expressly  declaring  this  purpose.    In  the  absence  of  such  a  



statement of purpose, the resulting session law has no effect on the conflicting procedural  

                                                                                        



provisions of the court rules.  Ibid.  

                                                     



                    Here, when the Legislature enacted AS 12.55.120(e) to restrict the right of  



sentence appeal, the Legislature failed to specify its intention to amend Appellate Rule  

                                                                                            



215(a)(1), the corresponding court rule that defined the right of sentence appeal.   



                                                             -20-                                                        2413
  


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

                    Concededly, it is obvious that the Legislature wished to restrict the right of  

                                                                                                                     



sentence appeal in a manner that is inconsistent with the provisions of Appellate Rule  

                                                                               



215(a)(1).  But as a legal matter, the clearness or obviousness of the Legislature's wishes  



makes no difference.  In Nolan v. Sea Airmotive, Inc. , 627 P.2d 1035, 1046 (Alaska  



 1981), the Alaska Supreme Court squarely rejected the argument that, whenever the  



Legislature's intended result is clear, any conflicting court rules must be harmonized  



with  the  Legislature's  wishes  even  though  the  Legislature  failed  to  comply  with  

                                    



Leege v. Martin .  



                    (b)  The second and third changes:  the amendments to this Court's  

                                                                         

                   sentence review jurisdiction  



                    Because the first sentence of AS 12.55.120(e) restricts the right of sentence  

                                                              



appeal, it also restricts this Court's authority to engage in sentence review.   



                    As we explained earlier, the portion of this Court's jurisdictional statute that  



defines our authority to review sentencing decisions of the superior court, AS 22.07.- 

                                                                                                     



020(b), now begins with the phrase "Except as limited in AS 12.55.120" - thus linking  

                                                     



the scope of our sentence review jurisdiction to the scope of sentence appeals allowed  

                                                                        



by AS 12.55.120.  Because of this statutory clause, every new limitation on the right of  

                                                                                            



sentence appeal codified in AS 12.55.120 also works a corresponding limitation on this  

                                         



Court's jurisdiction to hear sentence appeals.  



                    At  the  same  time,  the  second  sentence  of  AS  12.55.120(e)  gives  the  



supreme  court  the  power  to  expand  this  Court's  sentence  review  jurisdiction  -  by  



enacting court rules to authorize this Court to hear petitions for sentence review in cases  

                               



where the right of appeal is barred by AS 12.55.120(e).  



                                                            -21-                                                       2413
  


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

                                                                                 

                    This second sentence of AS 12.55.120(e) introduced something new to the  



                            

judicial review of sentences in Alaska.  Before the enactment of AS 12.55.120(e), there  



had always been a strict correlation between the definition of the right of sentence appeal  



and the definition of this Court's jurisdiction to conduct sentence review.  If a sentence     



was  appealable  (i.e.,  if  the  defendant  had  a  right  to  demand  judicial  review  of  the  



sentence), the Legislature would give this Court jurisdiction to review the sentence.  If  

                                                                                          



a sentence was not appealable (i.e., if it was only petitionable), the Legislature would  



take away this Court's jurisdiction to review the sentence, and any petitions for sentence  

                                                                                                 



review would go to the supreme court.  



                    Indeed, the current version of Appellate Rule 215(a) is premised on this  

                                                                  



long-standing  legislative  practice.    Subsection  (a)(1)  of  the  rule  lists  the  types  of  



sentences that are appealable.  Subsection (a)(4) declares that whenever a sentence is  



appealable, the appeal must be filed in this Court.  And subsection (a)(5) declares that  

                                                                                                             



whenever a sentence is not appealable, the defendant has a right to petition for sentence  



review, and this petition must be filed in the supreme court.  



                    But AS 12.55.120(e) departs from this practice.  The second sentence of  



this statute declares that if a defendant's sentence is non-appealable because it is within  

                                                            



the applicable presumptive range, the sentence may nevertheless "be reviewed by an  



appellate court ... through a petition filed under rules adopted by the supreme court."  

                                                                                 



And as we explained above, the Legislature used the phrase "an appellate court" (instead  



of "the supreme court") because the Legislature wanted to let the supreme court decide  

                                                                        



which appellate court would handle these petitions.  



                    Because  this Court's jurisdictional statute, AS 22.07.020(b), contains a  

                                  



cross-reference to the provisions of AS 12.55.120, this second sentence of AS 12.55.- 



 120(e) has the practical effect of granting the supreme court the power to enlarge this  

                                                                                                               



Court's sentence review jurisdiction by court rule.   



                                                             -22-                                                       2413
  


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

                    If the supreme court exercises its authority under AS 12.55.120(e) to enact  



a court rule that allows this group of felony defendants to file petitions for sentence  

                                                       



review, and if the new court rule specifies that these petitions should be filed in this  

                                                                          



Court (rather than in the supreme court, as is the current practice), then - because of the  

                                                                                                              



opening clause of AS 22.07.020(b) - the supreme court's action will have the effect of  

                         



expanding this Court's sentence review jurisdiction to include the authority to hear these  



sentence review petitions.  



                    The Legislature has the authority to define this Court's jurisdiction.  And  

                                                                                                         



both of the changes we have just been discussing are jurisdictional:  (1) taking away this  

                                                                                                                     



Court's authority to hear sentence appeals in cases where the right of appeal is taken  



away by AS 12.55.120(e), and (2) potentially expanding this Court's sentence review  

                                                                                        



jurisdiction, if the supreme court exercises its authority under AS 12.55.120(e) to direct  



those sentence review petitions to this Court.   



          Our conclusions regarding AS 12.55.120(e)  



                    Both AS 12.55.120(e) and Appellate Rule 215(a)(1) define the groups of  

                                                                                      



criminal defendants who have a right to appeal their sentences, but the statute and the  



rule contain different definitions.  These definitions are "procedural" under the supreme  

                                                                                                                 



court's decision in  Wharton.  When the Legislature enacted AS 12.55.120(e), it failed  

                                                                                                  



to take action to amend or re-write Appellate Rule 215(a).  Thus, the current appellate  



rule takes precedence over the statute, and the restrictions codified in AS 12.55.120(e)  

                                                           



have no effect with respect to the right of criminal defendants to appeal their sentences.  

                                                                             



                    The result is ostensibly different, however, with respect to the issue of this  

                                                                                                                  



Court's jurisdiction to engage in sentence review.  Under AS 22.07.020(b), this Court's  

                                                                                                                  



sentence  review  jurisdiction  hinges  on  the  provisions  of  AS  12.55.120.    Because  



                                                              -23-                                                         2413
  


----------------------- Page 24-----------------------

AS 12.55.120(e) declares that defendants whose sentences fall within the presumptive  

                                                                         



range have no right of sentence appeal, the statute (by its terms) apparently deprives this  

                                                                                   



Court of its authority to hear any such appeals.  



                    All of this presents a conundrum:  The Legislature's attempt to eliminate  



these defendants' right of appeal was not successful.  These defendants retain their right  



to appeal their sentences, and yet the language of AS 12.55.120(e) ostensibly eliminates  

                                                  



this Court's jurisdiction to hear these sentence appeals.  



                    But if we implemented the jurisdiction-limiting provision of AS 12.55.- 



120(e), these defendants' sentence appeals would have to be litigated in the supreme  



court.  See AS 22.05.010(b):  "Appeal to the supreme court is a matter of right ... in those  

                                                            



actions and proceedings from which there is no right of appeal to the court of appeals  

                                      



under AS 22.07.020[.]"   



                    This would be a novel result for Alaska law - because, ever since this  



Court began operation in 1980, the Legislature has consistently sent all sentence appeals  



to this Court, while all petitions for sentence review (i.e., all requests for appellate review  

                                                    



filed by defendants who have no right of sentence appeal) have gone to the supreme  



court.   



                    We acknowledge that, under Alaska law, when one portion of a statute is  

                                                                                                                   



determined to be invalid, there is a presumption that the remaining portions should still  

                                                                        



be given effect.  This presumption is codified in AS 01.10.030:  "Any law ... enacted by  

                                                                                              



the  Alaska  legislature  ...  shall  be  construed  as  though  it  contained  ...  the  following  



language:  'If  any  provision  of  this  Act,  or  the  application  thereof  to  any  person  or  

                      



circumstance  is  held  invalid,  the  remainder  of  this  Act  and  the  application  to  other  



persons or circumstances shall not be affected thereby.' "  



                    Because of this presumption of severability, we begin with the assumption  

                                                                                     



that even though the provision of AS 12.55.120(e) that restricts the right of sentence  

                           



                                                             -24-                                                       2413
  


----------------------- Page 25-----------------------

appeal is invalid, the provision of the statute that limits this Court's jurisdiction to hear          



these sentence appeals should nonetheless be given effect.   



                    However,  the  Alaska  Supreme  Court  has  declared  that  this  statutory  



presumption in favor of severability is a "weak" one - and that the real questions to be  

                                                           



asked in this situation are:  (1) whether the remaining, valid provision of the statute can  



be given legal effect in the absence of the accompanying invalid portion, and if so,  



(2) whether the legislature would have intended the remaining provision to stand, even  

though the accompanying provision is invalid. 24  

                                                                             



                                                                                                      

                    As the supreme court has explained, the reason  for asking  this  second  



question - i.e., trying to ascertain what the Legislature would probably want to happen,  



given the invalidation of part of the statute - is to avoid judicial interpretations that  

"result in a statute that no one wanted". 25  

                                                                 Thus, we must ask whether the Legislature  



intended to deprive this Court of our jurisdiction to hear the sentence appeals described  

                                                                           



in AS 12.55.120(e), even if these defendants continued to have the right to appeal their  

                                                                                         



sentences, and even if this meant that these sentence appeals would have to be heard by  

                                                                                                               



the Alaska Supreme Court.   



                    If we gave effect to the jurisdiction-limiting provision of AS 12.55.120(e),  

                         



we would be interpreting the statute to create two separate classes of sentence appeals.  

                                                                             



Defendants who were eligible to appeal under Appellate  Rule 215(a)(1), but whose  



sentences  fell  within  the  applicable  presumptive  range,  would  have  to  pursue  their  

                                                                                                    



appeals in the supreme court.  All other defendants who were eligible to appeal under  

                                                                                                                



Appellate Rule 215(a)(1) would pursue their appeals in this Court.  



     24   Southeast Alaska Conservation Council v. State                         , 202 P.3d 1162, 1172-73 (Alaska  



2009); Lynden Transport, Inc. v. State , 532 P.2d 700, 712-13 (Alaska 1975).  



     25   Alaskans for a Common Language, Inc. v. Kritz , 170 P.3d 183, 210 (Alaska 2007).  



                                                              -25-                                                             2413  


----------------------- Page 26-----------------------

                    We conclude that the Legislature did not intend, and would not wish, to  

                                                                               



create this dichotomy in the handling of sentence appeals.  The legislative history of  



AS 12.55.120(e) shows that the Legislature's goal was to eliminate these defendants'  



right of appeal.  The concomitant limitation of this Court's jurisdiction - the limitation  

         



arising from the phrase "except as limited in AS 12.55.120" in our jurisdictional statute  

                                                                                               



- was purely ancillary to this goal.   



                    To  the  extent  the  Legislature  was  actively  concerned  with  matters  of  



appellate jurisdiction, it appears that the Legislature's main goal was to eliminate the  

                                      



authority of either of Alaska's appellate courts to hear sentence appeals from defendants  



who received sentences within the applicable presumptive range - and to replace those  

                                                



sentence appeals with petitions for discretionary sentence review.   



                    Given  all  of  this,  we  conclude  that  the  Legislature  did  not  intend  the  

                                



jurisdiction-limiting provision of AS 12.55.120(e) to take effect unless, at the same time,  

                                                                                                              



the restriction on the right of sentence appeal codified in AS 12.55.120(e) also took  

                                                                                                



effect - i.e., unless these defendants were actually deprived of the right to appeal their  

                                



sentences.  



                    We therefore hold that the provisions of AS 12.55.120(e) are not severable.  

                                                                                



Because  the  restriction  on  sentence  appeals  codified  in  AS  12.55.120(e)  is  invalid,  



no provision of AS 12.55.120(e) should be given effect.  Thus, felony defendants who  

                                                                                                 



have the right to appeal their sentence under the provisions of Appellate Rule 215(a)(1)  

                                                                                          



remain eligible to pursue their appeal even though their sentence is within the applicable  

                                               



presumptive range - and this Court retains its jurisdiction to hear those appeals.  



                                                              -26-                                                         2413
  


----------------------- Page 27-----------------------

          Whether Mund's 20-year composite sentence is excessive  



                    As we described in our first opinion in this case, Mund v. State , Alaska  

                          



App. Memorandum Opinion No. 5914 (February 6, 2013), 2013 WL 466421, Mund  



drove over a pedestrian while attempting to escape from police officers who were trying  

                     



to arrest him.  (At the time, Mund was an escapee.)  



                    Based on this incident, Mund was convicted of first-degree assault, third- 

                                                                        



degree assault, reckless driving, failing to stop and render aid at the scene of an injury  



accident, failing to stop at the direction of a police officer, and driving with a suspended  

                                                                                                        



license.    



                    Mund was 44 years old when he was sentenced for these offenses, and he  

                                                   



had 37 prior convictions, including several felonies. Because of his prior felonies, Mund  

                                                                                              



was a "third felony offender" for presumptive sentencing purposes, and he therefore  

                                                                                                               



faced a presumptive sentencing range of 15  to 20 years' imprisonment for his most  

                                                                     

serious offense, the class A felony of first-degree assault. 26  

                                                                                           



                                                                              

                    Mund does not challenge the superior court's finding of four aggravating  



factors under AS 12.55.155(c):  (c)(15) - that Mund had more than two prior felony  



convictions;  (c)(20)  -  that  Mund  was  on  felony  probation  when  he  committed  his  



current  crimes;  (c)(21)  -  that  Mund  had  a  history  of  repeated  instances  of  similar  

                                                                  



criminal conduct; and (c)(31) - that Mund had five or more convictions for class A  

                                                                                                                      



misdemeanors.  



     26   See  AS  11.41.200(b)  (classifying  first-degree  assault   as  a  class  A  felony)  and  



AS  12.55.125(c)(4)  (prescribing  a  15-  to  20-year  presumptive  range  for  third  felony  

offenders convicted of a class A felony, other than a sexual felony).  



                                                             -27-                                                           2413  


----------------------- Page 28-----------------------

                   When the superior court imposed Mund's composite sentence of 20 years  



to serve, the court declared that its sentencing decision was based primarily on Mund's  

                                                                   



"overall record" - which, as we have explained, included 37 prior convictions.   



                   The  court  concluded  that,  given  Mund's  age  and  his  criminal  record,  



Mund's potential for rehabilitation was "at best guarded".  The superior court further  



found that Mund was a "worst offender" as that phrase is defined in Alaska sentencing  

                                                                                    



         27  

cases.                                                               

             Having made these findings, the court sentenced Mund to a composite term of  



20  years'  imprisonment  -  the  top  of  the  applicable  presumptive  range,  and  the  

maximum sentence for Mund's single most serious offense. 28  

                                                                                            



                                                                                     

                   The superior court's findings are supported by the record.  Given those  



                                                              

findings, and given the facts of the present case and Mund's criminal history, we can not  



                                                                                                     29  

                                                     

say that a composite sentence of 20 years to serve is clearly mistaken.                                  We therefore  



uphold this sentence.  



          Conclusion  



                   The judgement of the superior court is AFFIRMED.  



     27   See, e.g., State v. Wortham , 537 P.2d 1117, 1120 (Alaska 1975);                       Napayonak v. State ,  



793 P.2d 1059, 1062 (Alaska App. 1990).  



     28   See AS 12.55.125(c).  



     29   See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to  



affirm a sentencing decision unless the decision is clearly mistaken).  



                                                           -28-                                                      2413
  


----------------------- Page 29-----------------------

Judge COATS, concurring.  



                    I agree that this Court has jurisdiction to review Mund's sentence appeal.  

                                                                                   



But I see no reason to invalidate AS 12.55.120(e).  We should construe AS 12.55.120(e)  

                              

and Appellate Rule 215(a) harmoniously if possible,1 

                                                                                   and I believe the statute can be  



reconciled with the rule.   



                    When the Alaska Legislature enacted AS 12.55.120(e), it sought to amend  

                                                                  



the  procedure  set  out  in  Appellate  Rule  215(a).  From  my  review  of  the  legislative  

                                    



history, it appears that the legislature concluded that, when a court imposes a sentence  

                                                                                  



within the presumptive range for a criminal offense, it is highly unlikely the defendant  

                                                                    



will be successful in appealing the sentence as excessive.  The legislature reasoned that  



it would be a better use of judicial resources to give appellate courts discretion to review  

                                                    



such sentences through a petition for review, rather than to require appellate courts to  

                                                     



review these sentences as a matter of right.   



                    This intent is reflected in the language of AS 12.55.120(e), which provides  

                                                                                                              



that a sentence within the presumptive range may not be appealed as excessive to the  



court of appeals, but "may be reviewed by an appellate court on the ground that it is  

                                                                         



excessive  through  a  petition  filed  under  rules  adopted  by  the  supreme  court."                                      The  



legislature adopted this language in response to testimony by an administrative attorney  

                                                                                              



for the Alaska Court System. The attorney testified that he favored this language because  

                                                                 



it would allow  the court of appeals, which has more expertise in criminal matters, to  

                               



conduct the discretionary sentence review.  It is therefore apparent that the legislature  

                                                                                          



anticipated that discretionary review of such sentences would be performed by the court  

                                                             



     1    Nelson v. Anchorage , 267 P.3d 636, 642 (Alaska 2011).  



                                                              -29-                                                             2413  


----------------------- Page 30-----------------------

of appeals - though the supreme court would establish the procedural rules under which  



this jurisdiction would be exercised.  



                    Appellate Rule 215(a) allows a defendant to appeal any felony sentence in  

                                                                



excess of two years of unsuspended imprisonment to the court of appeals, unless the  

                                    

sentence was imposed as part of a plea bargain.2                                                               

                                                                           The legislature has the authority to  



                                                                                  

change this rule with a two-thirds vote of the members elected to each house, under the  



                                                           3  

procedures specified in Leege v. Martin .   Because it has not done so, the legislature has  



given no direct indication that it intended to override the supreme court's authority in this  



area.  



                                      

                    It therefore appears to me that this Court is obligated to follow Appellate  



                                                                                                 

Rule 215(a) by continuing to review any felony sentence in excess of two years that is not  



                  

imposed as part of a plea agreement, even if the sentence is within the presumptive range  



                                                                                                        

- at least until the supreme court grants this Court authority to review such sentences as  



discretionary petitions for review.  



     2    Alaska Rules of Appellate Procedure, Rule 215(a)(1), (4).  



     3    379 P.2d 447, 450-51 (Alaska 1963).  



                                                            -30-                                                       2413  

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