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Byford v. State (6/26/2015) ap-2458

Byford v. State (6/26/2015) ap-2458

                                                   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 @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



EDWARD GAYLORD BYFORD JR.,                                       Court of Appeals Nos. A-11123  

                                                                              & A-11133  

                                   Appellant,                   Trial Court No. 3KN-09-1800 CR  



                          v.  

                                                                          O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                   Appellee.                         No. 2458 - June 26, 2015  



                    ppeal from the Superior Court, Third Judicial District, Kenai,  

                 A                      

                 Peter G. Ashman, Judge.  



                 Appearances:    Sharon  Barr,  Assistant  Public  Defender,  and  

                 Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                 Eric  A.  Ringsmuth,  Assistant  Attorney  General,  Office  of  

                                                                                    

                 Criminal   Appeals,   Anchorage,   and   Michael   C.   Geraghty,  

                 Attorney General, Juneau, for the Appellee.  



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

                                                                

                 District Court Judge. *  

                                               



                 Judge MANNHEIMER.  



    *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                     A jury found Edward Gaylord Byford Jr. guilty of three offenses:  scheme               

to defraud, first-degree theft (by deception), and deceptive business practices.                                             1  The  



                        

superior court merged these three verdicts into one conviction (for scheme to defraud),  



                      

and the court then sentenced Byford to 6 years' imprisonment with 3 years suspended.  



                     In this appeal, Byford argues that there was insufficient evidence to support  



the jury's verdict on the charge of deceptive business practices.  Byford also challenges  

                                                                                                    



the jury's verdict on the scheme to defraud charge.  The statute defining this crime  



encompasses  (1)  schemes  to  defraud  five  or  more  persons  and  (2)  schemes  to  



fraudulently obtain $10,000 or more.  Byford's trial judge told the jurors that they did  

                                                                                             



not have to be unanimous as to which of these theories the State had proved, and Byford  

                                                                        



contends that this was error.  For the reasons explained in this opinion, we conclude that  



there is no merit to these claims.  



                     Byford also challenges his sentence.  First, he contends that the superior  

                                  



court improperly found two aggravating factors:  that Byford's conduct was among the  

                                                                                                   



most  serious  encompassed  by  the  charging  statutes,  and  that  Byford's  conduct  was  

                                                        



designed  to  obtain  substantial  financial  gain  while  running  only  a  slight  risk  of  

                                                   



prosecution.  Second, he contends that his sentence - 3 years to serve - is excessive.  

                                                                                      



For the reasons explained in this opinion, we uphold Byford's sentence.  



                     In addition, the State has filed a cross-appeal, challenging the superior  



court's decision to merge the three jury verdicts into a single conviction.  For the reasons  

                                              



explained here, we agree with the State that Byford should have received a separate  

                                                        



conviction and sentence for the crime of deceptive business practices.  



     1    AS 11.46.600(a), AS 11.46.120(a), and AS 11.46.710(a), respectively.  



                                                               - 2 -                                                           2458
  


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

          Underlying facts  



                    Byford was charged with scheme to defraud, and a related count of first- 

                                       



degree theft by deception, for defrauding nine people over the course of two and a half  

                                                                                 



years (between October 2004 and February 2007) - by promising to build log homes  

                                              



for these people, and by asking them to pay him a substantial portion of the money up  



front, but then never building the houses, and never refunding the money.  All told,  



Byford's victims paid him hundreds of thousands of dollars for buildings that never  



materialized.   



                    Byford  was  also  charged  with  a  separate  count  of  deceptive  business  

                                                             



practices.  This charge was based on the allegation that, in 2009, Byford established and  

                 



maintained  a  website  under  the  name  of  his  company,  "Prefab  Log  Homes".    This  

                                                                                      



website advertised Byford as a builder of log homes, and it displayed photographs of log  



cabins that he purportedly had built.  However, these cabins had in fact been built by  



other people - not Byford or his company.  



          The  sufficiency  of  the  evidence  to  support  the  jury's  verdict  on  the  

                                        

          deceptive business practices charge  



                    Byford contends that the evidence presented at his trial was insufficient to  

                                                          



support the jury's finding that he was guilty of the deceptive business practices charge.  

                                                                                                        



Byford concedes that his company's website was deceptive - that it would lead people  

                                                                                             



to  falsely  believe  that  Byford's  company  had  built  the  log  cabins  depicted  in  the  

                                                                                                         



photographs. But Byford argues that the evidence showed that the deceptive website was  

                                                       



set up by his girlfriend (whom he employed as his bookkeeper).  Byford contends that  

               



the State failed to show that he personally participated in establishing the website, or that  



he personally condoned the website's contents.  



                                                             - 3 -                                                       2458
  


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

                          When a defendant challenges the sufficiency of the evidence to support a                            



criminal conviction, this Court assesses the evidence (and all reasonable inferences to be                          



drawn from it) in the light most favorable to the jury's verdict, and we then determine                                            



whether this evidence would be sufficient to convince reasonable jurors that the State had   



                                                                                         2  

proved the charge beyond a reasonable doubt.     



                          Here, the evidence showed that Byford was the president of Prefab Log  



Homes, and that the website in question falsely purported to display examples of cabins  



built by Prefab Log Homes.   



                                                                                

                          According to the evidence, two people worked directly on the website:  



                                                                                   

Seth Crosby, a web developer and designer, and Lorraine Woitel, who was both Byford's  



girlfriend and the bookkeeper of Prefab Log Homes.   



                          Crosby testified that when he designed the website for Prefab Log Homes,  



he worked primarily with Woitel, and it was Woitel who gave him the photographs that  

                                                                                                             



were used on the website.   



                          Crosby recalled that he participated in three to five meetings with Woitel,  



and  that  Byford  was present for  two  of these  meetings.                                                       With  regard  to  these  two  

                                                                                                                                                   



meetings where Byford was present, Crosby testified that Byford actively participated  

                                



in one of them.  With regard to the other meeting, Crosby acknowledged that Byford did  

                                                           



not take an active role in the discussion, but Byford sat near to Crosby and Woitel (at a  

                                                                                                                                                



second  desk),  and  he  could  hear  their  entire  discussion.                                                   It  was  during  this  second  

                                                                                                                                 



meeting that Crosby and Woitel actively discussed the content to be included on the  



website.   



                          From this evidence, the jurors could reasonably infer that even if Byford  



did not actively participate in the second meeting, he was following the discussion, he  



      2      Moore v. State , 298 P.3d 209, 217 (Alaska App. 2013);                                                  Iyapana v. State , 284 P.3d  



841, 848-49 (Alaska App. 2012).  



                                                                              - 4 -                                                                          2458
  


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

was aware of the photographs that Woitel provided to Crosby for the website, and he was  

                                                             



aware that he had not built the cabins depicted in those photographs.   



                    These inferences were circumstantially bolstered by other evidence in the  

                                                                                                                      



case - evidence showing that, on at least four occasions, Byford personally engaged in  

                                                   



similar face-to-face deception of customers.  According to this evidence, Byford had  



prospective customers go and view log buildings in the area - to convince these people  

                                                                                               



to sign contracts with Byford and give him partial payments up front.  Byford falsely  

                                                                                                         



claimed to have built these log houses when, in fact, the houses were built by other  



contractors.  



                    We acknowledge that the evidence was conflicting on the question of who  

                                                     



was responsible for the content of the website.  In particular, Woitel took the stand and  

                                                   



claimed total responsibility for the website's contents.  But the question is whether the  



jury's  verdict  is  adequately  supported  if  the  evidence  is  viewed  in  the  light  most  



favorable to that verdict.  In other words, could the jurors reasonably reject Woitel's  



exculpatory  testimony?    Given  the  evidentiary  record  as  a  whole,  we  conclude  that  



reasonable jurors could reject this testimony and could find, instead, that Byford was  



aware of the website's deceptive contents.  



                    For these reasons, we conclude that the evidence is sufficient to support the  

                                                                                                           



jury's verdict on the deceptive business practices charge.  



          Whether the jurors were required  to reach unanimous agreement as to  

                                                              

          whether Byford's scheme was designed (1) to defraud five or more people  

          or (2) to fraudulently obtain $10,000 or more  



                    The offense of scheme to defraud is defined in AS 11.46.600(a). Under this  

                                                                                                                



statute, a person commits the crime of scheme  to  defraud if the person "engages in  

                                                                            



conduct constituting a scheme":  



                                                           - 5 -                                                      2458
  


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

                      

                              (1)  to  defraud  five  or  more  persons  or  to  obtain  

                                                                              

                    property or services from five or more persons by false or  

                                                                                                    

                    fraudulent pretense, representation, or promise ... ; or  



                              (2) to defraud one or more persons of $10,000 or to  

                                                                          

                    obtain $10,000 or more from one or more persons by false or  

                    fraudulent pretense, representation, or promise ...  



and if the person "obtains property or services in accordance with the scheme".  



                    When Byford's trial judge instructed the jury on the elements of this crime,  

                                                    



the judge told the jurors that they did not have to reach unanimous agreement as to  

                                                                                                                            



whether the State had proved element (1) or element (2).  Byford's attorney did not  

                                                



object  to  the  judge's  instruction,  but  on  appeal  Byford  argues  that  this  instruction  



constituted plain error because it allegedly deprived Byford of his right to a unanimous  

                                                                                                     



verdict.  More specifically, Byford argues that this instruction allowed the jury to convict  

             



him  even  if  they  did  not  unanimously  agree  on  the  particular  scheme  that  Byford  



engaged in.  



                    As Byford notes in his brief, there  is  case law holding that a verdict is  

                                                                                



flawed if, in a case involving evidence of two different fraudulent schemes, the jury is  

                                                                                                                           



not required to reach unanimous agreement as to which of these schemes the defendant  



engaged in or pursued.  See United States v. Mastelotto, 717 F.2d 1238, 1247-1250 (9th  

                                           



Cir. 1983).    



                    But  the  jury  instruction  in  the  present  case  did  not  say  that  it  was  

                                          



unnecessary for the jurors to agree on Byford's  conduct.   Rather (as we are about to  

                                          



explain), the challenged instruction told the jurors that they did not have to agree on  



Byford's intention.  



                    The charging statute, AS 11.46.600(a), requires the State to prove that the  

                                                                                                            



defendant engaged in a scheme, and that the scheme was designed "to defraud five or  

                 



                                                              - 6 -                                                         2458
  


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

more persons", or "to obtain property or services from five or more persons by false or  

                                                                                                   



fraudulent pretense", or  "to  defraud one or more persons of $10,000", or "to obtain  

                                           



$10,000 or more from one or more persons by false or fraudulent pretense".   



                   As this Court explained in Knix v. State , 922 P.2d 913 (Alaska App. 1996),  

                                                                                           



even though the scheme to defraud statute seemingly does not specify a culpable mental  

                                                                                          



state, the statute requires proof of the defendant's purpose or design, because the statute  

                                                                                     



employs the words "scheme" and "defraud" in their ordinary meaning:  



                     

                   As defined by the dictionary, [these] words describe conduct  

                    [that  is]  directed  toward  a  specific  objective.    ...    [T]he  

                    statutory phrase, "scheme to defraud," ... unmistakably refers  

                   to  purposive  conduct  -  a  scheme  -  that  is  intended  to  

                   achieve a specific result - a fraud.  The notion of intentional  

                   conduct is thus intrinsic in the ordinary meaning of the term  

                   "scheme to defraud."  



Knix , 922 P.2d at 920.  



                   It is important to note that the statutory language about defrauding five or  

                                                                                                    



more people, or about obtaining $10,000 or more, does not define the  results of the  



scheme.  That is, the State is not required to prove that the defendant actually succeeded  

                          



in  defrauding  five  or  more  people,  or  actually  obtained  $10,000  or  more  by  fraud.  

                                                                                      



Rather, the State must show that the defendant's scheme was designed to achieve these  

                                                



ends (and that the defendant was able to obtain at least some "property or services in  



accordance with the scheme").   



                   The legislative commentary to AS 11.46.600 - which is found in 1978  



Senate Journal Supp. 47 (June 12), pp. 57-58 - clarifies that "[i]t is not an element of  



[this] crime that a specific dollar loss was suffered by a victim of the scheme.  [Rather,  

                                                                                                



the]  defendant  must  obtain  property  or  services  from  at  least  one  of  his  victims  in  



accordance with the scheme."  



                                                           - 7 -                                                      2458
  


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

                     Alaska law requires jury unanimity regarding the act that forms the basis   

of a criminal conviction.  Jurors must "agree upon just what the defendant did".                                             3  

                                                                                                                                Thus,  



                                                    

"when two or more discrete acts, each potentially amounting to a crime, are encompassed  



                    

in  a  single  charge,  the  jury  must  be  unanimous  in  deciding  the  act  upon  which  it  



                                                         4  

determines [the defendant's] guilt."     



                                                                                             

                     But in cases where "only one criminal act [is] alleged and only one incident  



                                       

[is] involved", the jury "need not be unanimous concerning the precise theory of the  



                              5  

                                                                                                            

defendant's guilt."              Thus, in Ward v. State, 758 P.2d 87, 92 (Alaska 1988), the supreme  



                                                                                                                              

court held that jurors need not be unanimous as to whether the defendant drove a motor  



vehicle while impaired or, instead, while their blood alcohol level was above the legal  



                                                                                                                        6 

limit.  Similarly, in Totemoff v. State, 866 P.2d 125, 129 (Alaska App. 1993),   this Court  



                

held that jurors need not be unanimous as to whether a defendant is guilty because of  



their own personal actions or because of their complicity in other people's actions.  And  



in  Ragsdale  v.  State ,  23  P.3d  653,  659  (Alaska  App.  2001),  this  Court  held  that  a  



                                                                                                                             

defendant could lawfully be convicted of sexual assault even though the jurors were not  



                                                                                                                

unanimous as to whether the defendant knew that the victim (1) was incapacitated or  



(2) was unaware that sexual penetration was occurring.  



                                                                                                                      

                     The crime at issue in Byford's case, scheme to defraud, is defined as a  



                                                                                               

course of conduct that is accompanied by one or more of a specified list of purposes or  



designs.  The purposes or designs listed in the statute are not mutually exclusive.  Nor  



     3    Khan v. State , 278 P.3d 893, 898 (Alaska 2012), quoting State v. James, 698 P.2d  



1161, 1167 (Alaska 1985).  



     4     Totemoff v. State, 866 P.2d 125, 129 (Alaska App. 1993).  



     5    Andrew v. State , 237 P.3d 1027, 1040-41 (Alaska App. 2010), quoting                                     State v. James,  



698 P.2d at 1165-66.  See also  Nunn v. State , 845 P.2d 435, 443-44 (Alaska App. 1993).  



     6    Reversed on other grounds in  Totemoff v. State, 905 P.2d 954 (Alaska 1995).  



                                                                 - 8 -                                                            2458
  


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

 do they define a defendant's conduct; rather, they define the aim(s) of the defendant's     



 conduct.  Given the applicable case law on this issue, we hold that the jurors did not need                                                   



to unanimously agree as to which of these purposes or designs had been proved.  



               The superior court's decision to merge the three jury verdicts into a single   

               conviction  



                              Before we reach the sentencing issues that Byford raises, we must first     



 address the issue raised by the State in its cross-appeal.   



                              As we noted earlier in this opinion, the jury returned guilty verdicts on all  

                                                                                                                                                                



                                                                                                                                                                         7 

three of the charges against Byford:  the class B felony of scheme to defraud,   the class  

B felony of first-degree theft (under a theory of theft by deception), 8 and the class C  



                                                                                                                                                                

 felony of deceptive business practices.  (This last offense was raised to a class C felony  

because Byford used the Internet to commit the offense. 9 )  



                                                                                                                                                    

                              The  superior  court  ruled  that,  under  Alaska's  law  relating  to  double  



                                                

jeopardy, these three offenses had to merge into a single conviction, so the court entered  



judgement against Byford for only one class B felony:  scheme to defraud.   



                              This Court has already held that when a defendant is convicted of scheme  

                                                                                                                      



to defraud and theft by deception based on the same course of conduct, the convictions  



must merge.   Knix v. State , 922 P.2d 913, 923 (Alaska App. 1996).                                                                                            And  the State  

                                                                                                                                                                           



 concedes that Byford's convictions for scheme to defraud and theft must merge.  But the  

                                                                                                        



 State  argues  that  Byford  should  have  received  a  separate  conviction  for  deceptive  



        7      AS 11.46.600(b).  



        8      AS 11.46.120(b).  



        9      AS 11.46.710(c) - (d).  



                                                                                          - 9 -                                                                                     2458
  


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

business  practices,  and  that  the  superior  court   committed  error  by  merging  this  



conviction with the other two.   



                       The  State  makes  two  arguments  in  support  of  its  position  that  Byford  

                                                               



should receive a separate conviction for the crime of deceptive business practices.  



                       First,  the  State  notes  that  Byford  was  convicted  of  the  felony  level  of  

                                  



deceptive business practices, as defined in AS 11.46.710(d).  To convict a defendant  

                                                                                                             



under this subsection, the State not only has to prove that the defendant made deceptive  

                                                                                            



statements to promote the sale of goods or services, but also that the defendant used the  

                                                                                                 



Internet or some other computer network to communicate these deceptive statements to  

                                                                                                                                



the public.  Because the statute requires proof of this additional element (use of the  



Internet), the State therefore argues that this felony level of deceptive business practices  



protects a distinct societal interest from the crimes of scheme to defraud or theft by  



deception, and that Byford should accordingly receive a separate conviction and sentence  



for establishing his deceptive website.   



                       Second, the State notes that Byford's prosecution for scheme to defraud and  



theft by deception was based on a course of conduct that he engaged in between October  

                                                           



2004 and February 2007, but Byford's conviction for deceptive business practices was  

                                              



based on the website that he established in 2009.  Thus, the conduct involved in the  

                                               



deceptive business practices charge took place years after the conduct involved in the  



scheme to defraud and theft by deception charges.  And as the State notes, even when a  



defendant engages in multiple instances of exactly the same crime, the defendant can  

properly receive separate convictions if those instances are sufficiently distinct. 10  

                                                                                                                                               



      10   Joseph v. State , 293 P.3d 488, 492 (Alaska App. 2012).  See also                                        Wiglesworth v. State,  



249 P.3d 321, 329-331 (Alaska App. 2011), for our discussion of the related question of     

when separate convictions for possession of a drug or weapon are, or are not, allowed.  



                                                                      - 10 -                                                                  2458
  


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

                    We need not reach the State's first argument (the argument that Byford's  

                                                                                          



use of the Internet implicates a societal interest that is sufficiently distinct to support a  



separate conviction) because we agree with the State's second argument.  Given the facts  

                                



of Byford's case, the establishment of the deceptive website in 2009 is factually distinct  

                            



enough from the earlier crimes to support a separate conviction.  



                    The  superior  court's  ruling  on  this  issue  -  the  ruling  that  Byford's  

                                                                       



conviction for deceptive business practices had to merge with his other two convictions  

                                                                                                    



- appears to have been premised on a misunderstanding of the law.  The court declared  



that the deceptive business practices verdict had to merge with the other two verdicts  

                                                          



because Byford's use of the website was the "same course of conduct" as his scheme to  

                                                                                         



defraud:  



                      

                               The  Court:    [These  verdicts]  merge  because  [the]  

                    posting [of] the [deceptive] pictures on the website [was] part  

                    and parcel of what led each of the victims [of the scheme to  

                                                                                      

                    defraud] into Mr. Byford's trap.  ...  [It was] all the same  

                                                 

                    conduct, ... the same course of conduct.  It's the same type of  

                                                                                  

                    conduct,  done  with  the  same  mental  state,  for  the  same  

                    purpose.  



                    Byford's establishment of the deceptive website may have been "the same  

                                                                                              



type of conduct", but it was not "the same course of conduct".  As a factual matter, it was  

                                                                          



undisputed that Byford's establishment of the deceptive website took place in 2009 -  

                                                                                                                    



two years after the completion of the scheme to defraud charged in the indictment (a  



scheme that Byford engaged in between October 2004 and February 2007).   



                    It is true, as the superior court remarked, that Byford's establishment of the  

                                       



deceptive website appears to be the same "type of conduct" as the earlier scheme to  



defraud.  Indeed, as the superior court also remarked, one might reasonably infer that  

                                                                                                    



Byford's establishment of this website was the inauguration of yet another scheme to  

                



                                                             - 11 -                                                         2458
  


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

defraud - a scheme "done with the same mental state, [and] for the same purpose" as  

                                                                                     



the earlier one.   



                    But even though a defendant may characteristically and repeatedly engage  



in schemes to defraud, our scheme to defraud statute does not define the crime in terms  

                                                                                              



of a person's criminal tendencies or aspirations.  Rather, the statute punishes the act of  

                                                                                       



engaging in an identifiable scheme to defraud.   



                    In the present case, the sentencing judge was justified in concluding that  



Byford's establishment of the deceptive website showed that he was getting ready to  



defraud more people, and to defraud them in the same manner as he had done from 2004  

                                                                                 



to 2007.  But as a legal matter, this does not mean that the two schemes must be treated  

                                                                                   



as one.  



                    Any fraud that Byford achieved through the deceptive website would have  

                                                                                       



been substantially separated in time from the scheme to defraud that was charged in the  

                                                                                                              



indictment.    And,  except  for  Byford's  use  of  the  same  modus  operandi  (showing  



potential customers examples of log buildings that were not his), there was no evidence  

                                                        



that Byford's establishment of the deceptive website in 2009 was a continuation of the  

                                                                                 



scheme to defraud charged in the indictment - a scheme that Byford pursued from late  

                                                                                       



2004 to early 2007.  We therefore conclude that the superior court should have entered  

                                



a separate conviction for the deceptive business practices charge.   



                    In his brief to this Court, Byford argues that even if the double jeopardy  

                                                                                         



clause does not require a merger of these charges, "this does not mean that they cannot  

                                                                                             



merge".  Byford suggests that the sentencing judge could still merge these convictions  



if, as a matter of sentencing discretion, the judge concluded that this was a fair outcome.  

                                                                                                             



                    We expressly rejected this approach to double jeopardy law in Erickson v.  



State, 950 P.2d 580 (Alaska App. 1997).  As we explained in Erickson , double jeopardy  

                                                              



rulings like the one in Byford's case are not exercises of sentencing discretion; rather,  



                                                             - 12 -                                                        2458
  


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

they are rulings of law - legal decisions as to how many convictions are supported by  



the given facts.  Id. at 585-87.  As a consequence, if a sentencing judge wrongly merges  

                                               



two convictions, the State is entitled to relief in the nature of mandamus - i.e., an order  

                                                                                           



directing the trial court to reinstate the merged conviction, and to sentence the defendant  

                                    



for this separate offense.  State v. Occhipinti, 562 P.2d 348, 349-351 (Alaska 1977);  

             



Hunter v. State , 182 P.3d 1146, 1154 (Alaska App. 2008).  



                    We therefore direct the superior court to enter a separate conviction on the  

                                                                                                          



charge of deceptive business practices, and to sentence Byford for this offense.  



          Byford's challenge to the two aggravating factors found by the sentencing  

                                                  

         judge, and why we conclude that Byford's challenge is moot  



                    At  the  sentencing  proceedings  in  this  case,  the  State  proposed  two  

                                                                       



aggravating factors:  first, that Byford's conduct was among the most serious within the  

                                        

definition of the offense, 11  

                                                 

                                          and second, that Byford's conduct was designed to obtain  



                                                                                                                    12  

substantial pecuniary gain, while his risk of criminal prosecution was slight.                                           



                                                                                                                       

                    Byford agreed to have the sentencing judge sit as the trier of fact on these  



                                                                                     

proposed aggravators, and the judge concluded that the State had proved both of them.  



The judge then sentenced Byford to 6 years' imprisonment with 3 years suspended (i.e.,  



3 years to serve) for the crime of scheme to defraud.  



                                                                                   

                    On appeal, Byford argues that he must be re-sentenced because the facts of  



                                                                                      

his case do not support the judge's findings with respect to the two aggravating factors.  



                                                                                     

But Byford's contention is moot - because Byford was sentenced under the pre-March  



2005 version of Alaska's sentencing laws.   



     11   AS 12.55.155(c)(10).   



     12   AS 12.55.155(c)(16).  



                                                             - 13 -                                                        2458
  


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

                   As we have explained, Byford's scheme to defraud spanned two and a half                        



years, from October 2004 to February 2007.  While Byford was pursuing this scheme to  



defraud - in March 2005 - the Alaska Legislature enacted a major revision of our  

state's sentencing laws. 13  

                                        



                                                            

                   Because  the  law  changed  in  the  middle  of  Byford's  criminal  scheme,  



Byford's case presented a question as to  whether the former law or the current law  



should govern his sentencing.  And it was not clear whether one version of the law was  

                                                                                                              



more favorable to Byford than the other.   



                   Byford was a first felony offender being sentenced for a class B felony.  



Under Alaska's current sentencing laws, Byford would face a presumptive sentencing  

                                                                         

range  of  1  to  3  years'  imprisonment. 14  

                                                                This  means  that,  unless  the  State  proved  



                                                                                                      

aggravating factors, Byford's total sentence - the combination of his time to serve plus  



                                                                            15  

                                                                                 

his suspended jail time - could not exceed 3 years.                            On the other hand, under current  



law, Byford would have to receive at least 1 year to serve unless he proved mitigating  



factors.  



                    The pre-March 2005 sentencing laws were less favorable to Byford in some  



respects, but more favorable to him in others.  This is because scheme to defraud is a  

                                                                      



class B felony - and because, under the pre-March 2005 version of the presumptive  

                                               



sentencing  laws,  the  rules  of  presumptive  sentencing  did  not  apply  to  first  felony  

                           



offenders convicted of class B and class C felonies.   



                    In particular, the pre-March 2005 version of AS 12.55.125(d) - the statute  

                                                                                



that governs sentencing for class B felonies - specified a presumptive term of 4 years'  

                                                                                                                    



     13   See  SLA  2005,  ch.  2.    Pursuant  to    33  and  34  of  this  session  law,  the  revised  



presumptive sentencing statutes took effect on March 23, 2005.  



     14   AS 12.55.125(d)(1).  



     15   AS 12.55.125(n).  



                                                           - 14 -                                                      2458
  


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

imprisonment for second felony offenders, but there was no presumptive term for first     



felony   offenders.  Instead, the sentencing of first felony offenders was governed by  



                                      16  

former AS 12.55.125(k).                                                          

                                          This statute provided that a first felony offender convicted  



                    

of a class B  felony could receive any sentence up to the 10-year maximum term of  

imprisonment  for  class  B  felonies, 17  

                                                          but  with  the  proviso  that  the  "time-to-serve"  



                                                                              

component of the sentence could not exceed 4 years (the presumptive term that applied  



                                                                                              

to second felony offenders) unless the State proved aggravating factors or extraordinary  

circumstances. 18  



                              

                    Thus, under the pre-March 2005 sentencing laws, Byford could receive a  



                                                                                                                 

sentence of up to 10 years' imprisonment with 6 years suspended - 4 years to serve -  



                                                    

even in the absence of aggravating factors.  In this respect, the pre-March 2005 law was  



less favorable to Byford.   



                    But the pre-March 2005 law also allowed Byford's sentencing judge to give  



                                  

him less than 1 year's imprisonment - indeed, to give him no jail time at all - even if  



                                                     

Byford  failed  to  prove  mitigating  factors.    And  because  whatever  sentence  Byford  



                                                                                     

received would not be "presumptive", Byford would not face any special restriction on  

his ability to seek release on discretionary parole. 19  

                                                                             So in these respects, the pre-March  



2005 law was more favorable to Byford.  



                                                                                           

                    At Byford's sentencing hearing, the prosecutor noted that the sentencing  



                                                                                                     

laws had changed in the middle of Byford's scheme to defraud, and the prosecutor told  



                                                                                           

the court that the State was willing to stipulate that Byford's case was governed by the  



     16   Repealed by SLA 2005, ch. 2,  32.  



     17   See AS 12.55.125(d).  



     18   See  Surrells v. State, 151 P.3d 483, 484 (Alaska App. 2006).  



     19   See AS 33.16.090.  



                                                           - 15 -                                                       2458
  


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

0- to 4-year non-presumptive sentencing range of the pre-March 2005 law, rather than   



the 1-    to 3-year presumptive sentencing range of the current law.  Byford's attorney took     



no position as to which law applied.  



                     Although the sentencing judge never expressly ruled on this issue, it is clear  

                                                                                                                                



from the judge's remarks, and from the written judgement, that the judge sentenced  



Byford  under  the  pre-March  2005  law.    When  the  judge  addressed  Byford  at  the  



sentencing hearing, the judge told him that he faced a sentencing range of 0 to 4 years.  

                                                                                                                          



And the judge never referred to Byford's sentence as "presumptive" - either in his oral  



pronouncement of the sentence or in the written judgement that he issued later.   



                     On appeal, Byford does not challenge the judge's decision to apply the pre- 

                                                                                                                 



March 2005 version of the sentencing statutes.  We will therefore assume, for purposes  



of this case, that it was proper to apply the pre-March 2005 law.  



                     And  under  that  pre-March  2005  law  -  in  particular,  under  former  

                              



AS 12.55.125(k) - any question as to whether the State proved aggravating factors is  

                                                               



moot.  Byford received a sentence of 6 years' imprisonment with 3 years suspended, and  



that sentence is lawful under the former law even in the absence of aggravating factors,  

because the "time to serve" component of Byford's sentence is less than 4 years. 20  



          Byford's argument that his sentence is excessive  



                     Although we are remanding Byford's case to the superior court for the entry  



of  a  separate  conviction  and  sentence  on  the  deceptive  business  practices  charge,  



Byford's new composite sentence can not exceed his current sentence of 6 years with  



3 years suspended.   



     20    See  Surrells v. State, 151 P.3d 483, 485 (Alaska App. 2006).   



                                                                - 16 -                                                            2458
  


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

                       As we have explained, we agree with the State that the superior court was   



legally required to enter two separate felony convictions against Byford:  one based on   



the jury's findings that Byford was guilty of scheme to defraud and theft by deception,  



and the other based on the jury's finding that Byford was guilty of deceptive business  

                                                            



practices.  But even though the superior court must now enter another conviction against  

                                                                                                 



Byford and impose a separate sentence for this conviction, the double jeopardy clause  



limits  the  superior  court's  authority  to  modify  Byford's  overall  sentence.    Byford's  

                                                 



                                                                                                                                                21  

sentence can be modified, but only to the extent necessary to correct the illegality.                                                                



                                                                                                                                   

                       Here, even though the superior court must impose a separate sentence for  



the crime of deceptive business practices, our law allows the court to make that new  



                                                                                                                                                    22  

                                

sentence entirely concurrent with Byford's existing sentence for scheme to defraud.  



Alternatively, the court could impose a consecutive sentence for the deceptive business  



                                      

practices  conviction  but  reduce  Byford's  sentence  for  scheme  to  defraud,  so  that  



                                                                                                                               23  

Byford's new composite sentence does not exceed his original sentence.                                                               



                                                  

                       Because these alternatives are available to the superior court, the superior  



                     

court is not allowed to increase Byford's sentence.  We therefore must address Byford's  



                                                 

claim that his sentence of 6 years' imprisonment with 3 years suspended is improperly  



severe.  



      21    Smith v. State         , 892 P.2d 202, 203-04 (Alaska App. 1995);                                Christensen v. State, 844  



P.2d 557, 558 (Alaska App. 1993); Curtis v. State, 831 P.2d 359, 360 (Alaska App. 1992);                              

Love v. State         , 799 P.2d 1343, 1346-47 (Alaska App. 1990);                                  Joseph v. State , 712 P.2d 904,  

905-06 (Alaska App. 1986).  



      22    See Love v. State , 799 P.2d 1343, 1346 (Alaska App. 1990).   

                    



      23    See Joseph v. State , 712 P.2d 904, 905-06 (Alaska App. 1986).  

                    



                                                                      - 17 -                                                                   2458
  


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

                  When a defendant challenges a sentence imposed for two or more criminal  



convictions, the appellate court will assess whether the combined sentence is clearly  

mistaken, given the whole of the defendant's conduct and history. 24  



                  At  Byford's  sentencing,   the  judge  spoke  at  length,  and  he  thoroughly  



addressed the sentencing goals codified in AS 12.55.005.  The judge concluded that  



Byford's  sentence  had  to  emphasize  the  goals  of  general  deterrence,  community  



condemnation, and the reaffirmation of societal values.  



                  The judge acknowledged that some construction contractors might cheat  



by  "cutting  corners"  in  their  work,  but  the  judge  declared  that  Byford's  case  was  



significantly different - both because of the large scale of his thefts, and also because,  

                                                                                 



during the course of the scheme, he used the false trust that he created with earlier clients  



to  ensnare  new  clients.    The  judge  also  found  that  Byford  took  money  for  projects  



"absolutely knowing ... that he couldn't fulfill the contracts.  He didn't order enough  



materials  to  complete  the  projects  [and]  he  didn't  have  enough  time  to  fulfill  the  

                                                                         



contracts."   



                  The judge also focused on the "bald-faced shamelessness of [Byford's]  



behavior",  as  well  as  the  fact  that  Byford's  risk  of  being  criminally  prosecuted  (as  

                                                                                                 



opposed to being sued civilly) was "almost zero".   



                  And  the  judge  found  that  Byford's  prospects  for  rehabilitation  were  



negligible - because Byford, "at least in the context of business dealings, is essentially  

                                                              



amoral."  The judge noted that Byford had not provided his victims with any form of  



restitution - "not a penny."   



                  For all these reasons, the judge concluded that "significant jail time" was  

                                                                                  



necessary  to  deter  Byford  and  others  like  him,  to  satisfy  the  goal  of  community  



    24   Brown v. State , 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d  



554, 558-59 (Alaska App. 1987).  



                                                      - 18 -                                                  2458
  


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

condemnation,  and  to  reaffirm  societal  norms.    As  we  have  explained,  the  judge  



sentenced Byford to 6 years' imprisonment with 3 years suspended - i.e., 3 years to  

                                   



serve.   



                    The question on appeal is whether this sentence is "clearly mistaken" -  

                                         



whether it falls outside "[the] permissible range of reasonable sentences", given the  

entirety of Byford's conduct and background. 25  

                                                                         



                                                                                                          

                   Byford's active term of imprisonment - 3 years to serve - is one year less  



than the 4-year presumptive term provided for second felony offenders under the pre- 



March 2005 law, and it is well within the sentencing range for a first felony offender  

                                                          



convicted of a class B felony under that former law.  Considering the number of Byford's  

                                                                           



victims, the amount of money he obtained through his scheme to defraud, Byford's lack  

                                                                                                            



of remorse, and the fact that, two years later, Byford set up a deceptive website that was  

                                                                                  



apparently  the  prelude  to  a  new  round  of  fraud,  we  uphold  the  superior  court's  



sentencing decision.  



          Conclusion  



                   We conclude that there was sufficient evidence to support the jury's verdict  

                                                                           



finding Byford guilty of deceptive business practices.  We further conclude that the jury  



was correctly instructed regarding the charge of scheme to defraud.  We hold that the  



trial  court  committed  error  when  it  merged  these  two  offenses.                               Byford  must  be  

                                                                                                      



separately convicted and sentenced for the offense of deceptive business practices, but  

                                                                                              



the superior court may not increase Byford's overall sentence.   



     25   State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000), quoting McClain v. State , 519  



P.2d 811, 813 (Alaska 1974).  



                                                           - 19 -                                                      2458
  


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

                  Byford's contentions regarding the State's proposed aggravating factors are  



moot.  And Byford's sentence of 6 years' imprisonment with 3 years suspended is not  



clearly mistaken.   



                  For these reasons, we AFFIRM the judgement of the superior court, except  

                                                                                                       



that this judgement must be amended to reflect a separate conviction and sentence for the  

                                       



crime of deceptive business practices.  



                  We do not retain jurisdiction of this case.  



                                                       - 20 -                                                    2458
  

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