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State v. Seigle (3/17/2017) ap-2545

State v. Seigle (3/17/2017) ap-2545

                                                                          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                                                



STATE  OF  ALASKA,  

                                                                                                Court  of  Appeals  No.  A-11473  

                                                  Appellant,                                 Trial  Court  No.  3AN-10-4009 C                          R  



                                      v.  

                                                                                                                O P I N I O N  

                                                                                                                                     

JAMES R. SEIGLE,  

                     

                                                                                                 No. 2545 - March 17, 2017  

                                                                                                                                             

                                                  Appellee.  



                         Appeal   from  the   Superior   Court,  Third   Judicial   District,  

                                       

                                                                                                                           

                         Anchorage, Philip R. Volland, Judge, and the Statewide Three- 

                                                                                                                               

                         Judge   Panel,   Eric   Smith,   John   Suddock,   and   Trevor   N.  

                                                                                                                                     

                         Stephens, Judges.  

                                                          



                         Appearances:  Donald Soderstrom, Assistant Attorney General,  

                                                                                                                            

                         Office   of   Criminal   Appeals,   Anchorage,  and  Michael   C.  

                                                                                                                                      

                         Geraghty, Attorney General, Juneau, for the Appellant; Shelley  

                                                                                                                              

                         K. Chaffin, Law Office of Shelley K. Chaffin, Anchorage, for  

                                                                                                                                      

                         the Appellee.  

                                                    



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

                                                                                                                             

                         District Court Judge.*  

                                                                  



                                     

                         Judge ALLARD.  



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



Constitution and Administrative Rule 24(d).                         


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

                                                                                                                        1  

                      James R. Seigle was convicted of first-degree sexual assault                                         for coercing   



his   girlfriend   to   engage   in   oral sex.                 We   affirmed   Seigle's   conviction   in   a   previous  

              2   The present appeal deals with Seigle's sentence.  

decision.                                                                         



                      As a first felony offender, Seigle faced a presumptive term of 20 to 30 years  

                                                                                                                                      

for this crime.3          At sentencing, Superior Court Judge Philip Volland found two bases for  

                                                                                                                                         



referring Seigle's  case  to  the  statewide  three-judge  sentencing panel.                                              First,  Judge  

                                                                                                                                    



Volland  concluded  that  Seigle  had  proved  the  non-statutory  mitigating  factor  of  

                                                                                                                                          



extraordinary potential for rehabilitation.  Second, Judge Volland concluded that it would  

                                                                                                                                     



be manifestly unjust to impose a sentence within the applicable presumptive range in  

                                                                                                                                           



Seigle's case.  

               



                      At the time of sentencing, Seigle was fifty-four years old and employed.  

                                                                                                                                                



He had a single prior criminal conviction - a misdemeanor conviction in California  

                                                                                                                              



from more than ten years ago for "false personation."  In his sentencing remarks, Judge  

                                                                                                                                     



Volland (who had also been the trial judge) expressed  his  confidence that the events  

                                                                                                                                    



recounted at Seigle's trial were "one-time events, most likely never to be repeated," and  

                                                                                                                                         



that the sentencing goal of rehabilitation was already satisfied, in the sense that Seigle's  

                                                                                                                                  

criminal behavior would not happen again.4  

                                                             



                      Judge Volland concluded that Seigle was the type of defendant that "the  

                                                                                                                                       



non-statutory  mitigator  [of  extraordinary  potential  for  rehabilitation]  is  intended  to  

                                                                                                                                          



recognize."            The  judge  further  found  that  manifest  injustice  would  result  if  Seigle  

                                                                                                                                    



received a sentence within the presumptive range of 20 to 30 years.  The judge expressed  

                                                                                                                               



      1    AS   11.41.410.  



      2    Seigle v   .  State,  2016 W         L  5172623  (Alaska  App.  June 2                2,  2016)  (unpublished).  



      3    See  AS   12.55.125(i)(1)(A)(ii).   



      4    See,   e.g.,  Kirby   v.   State,   748   P.2d   757,   766   (Alaska   App.   1987)   ("Rehabilitation  



potential  is  []  the c   onverse  of  dangerousness.").  



                                                                   - 2 -                                                               2545
  


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

his opinion that "a 10-year sentence [would be] enough," given the facts of this case and                                                                                     



 given Seigle's history and individual characteristics.                                                        However, Judge                       Volland did not           



have the authority to impose such a sentence, so he referred Seigle's case to the three-                                                                                 

judge sentencing panel, which does have that authority.                                                             5  



                            At the conclusion of the sentencing proceedings before the three-judge  

                                                                                                                                                            



panel,   the   panel   rejected   Seigle's   proposed   non-statutory   mitigating  factor   of  

                                                                                                                                                                               



 extraordinary potential for rehabilitation.  But the panel agreed with Judge Volland that  

                                                                                                                                                                             



 it would be manifestly unjust to sentence Seigle to a term of imprisonment within the 20- 

                                                                                                                                                                              



to 30-year presumptive range.  The panel ultimately sentenced Seigle to 20 years with  

                                                                                                                                                                            



 5 years suspended (15 years to serve) - a sentence that the panel independently found  

                                                                                                                                                                         

was "appropriate under the Chaney criteria."6  

                                                                            



                            In reaching its sentencing decision, the three-judge panel relied in part on  

                                                                                                                                                                                

this Court's decision in Collins v. State.7   Because of the three-judge panel's reliance on  

                                                                                                                                                                                

 Collins, the State now challenges Seigle's sentence as illegal.8  

                                                                                                                  



                            As  we  explain  more  fully  in  this  opinion,  the  State  contends  that  our  

                                                                                                                                                                              



 decision in Collins was "never the law in Alaska" - and that, because the three-judge  

                                                                                                                                                              



panel relied on Collins when it sentenced Seigle, Seigle's sentence is so fundamentally  

                                                                                                                                                        



 flawed that the double jeopardy clause of the Alaska Constitution does not protect it from  

                                                                                                                                                                           



reversal on appeal.  

                         



        5     See  AS 12.55.165 & AS 12.55.175.                 



        6  

                                                                                                                                                                                

              See Chaney v. State, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005 (codifying the  

                  

 Chaney criteria).  



       7  

                                                                     

              287 P.3d 791 (Alaska App. 2012).  



        8     We note that Seigle was also convicted of fourth-degree assault for conduct related  

                                                                                                                                                                        

to the same incident.  The three-judge panel imposed 30 days for that crime.  Seigle did not  

                                                                                                                                                                               

 appeal that conviction in his direct appeal and the State did not cross-appeal that sentence.  

                                                                                                                                                                                       



                                                                                      - 3 -                                                                                 2545
  


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

                          For the reasons explained in this opinion, we reject the State's arguments                                              



and we affirm Seigle's sentence.             



             Our decision in Collins v. State  

                                                                  



                          To explain the State's claim that our decision in Collins was "never the law  

                                                                                                                                                               



in Alaska," we must first describe the substance  and the procedural history of that  

                                                                                                                                                              



decision.  



                          In 2006, the Alaska Legislature greatly increased the penalty ranges for all  

                                                                                                                                                                  



sexual felonies - based in part on the presumptions that a person convicted of a sex  

                                                                                                                                                               



offense  typically  had a history of other undisclosed sex offenses and that a person  

                                                                                                                                                        

convicted of a sex offense typically had unusually poor prospects for rehabilitation.9                                                                           In  

                                                                                                                                                                       



Collins,  this Court concluded (by a two-to-one vote) that,  because these  legislative  

                                                                                                                                                  



presumptions might not be true in a particular defendant's case, a defendant convicted  

                                                                                                                                                   



of a sex offense should be given the opportunity to show (by clear and  convincing  

                                                                                                                                               



evidence) that he or she had no history of prior sex offenses, or that he or she had normal  

                                                                                                                                                         

prospects for rehabilitation. 10                            If a defendant could make these showings,  this might  

                                                                                                                                                           



entitle  the  defendant  to  have  his  or  her  case  referred  to  the  statewide  three-judge  

                                                                                                                                              



sentencing panel - the judicial body authorized to impose sentences outside the normal  

                                                                                                                                                        

constraints of presumptive sentencing.11  

                                                    



                          Judge Bolger dissented from the decision in Collins.  In his dissent, Judge  

                                                                                                                                                           



Bolger argued that  it  was  illogical to conclude that manifest injustice exists when a  

                                                                                                                                                                   



felony sex offender with moderate prospects for rehabilitation is sentenced to a term of  

                                                                                                                                                                  



       9     Collins, 287 P.3d at 795-97.          



       10    Id.  



       11    Id.  



                                                                               - 4 -                                                                         2545
  


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

 imprisonment   within   the   established   presumptive   ranges   because   "the   legislature  



                                                                                                                                                                            12  

recognized that sex offenses can have a serious impact on the victim and society."                                                                                               



 Judge Bolger reasoned that  a  sex offender with moderate prospects for rehabilitation  

                                                                                                                                                     



 "may still pose an unacceptable danger to the community," and that defendants should  

                                                                                                                                                                  



therefore  be  required  to  show  the  same  "particularly  favorable"  prospects  for  

                                                                                                                                                                        



rehabilitation as other offenders in order to establish a non-statutory mitigating factor  

                                                                                                                                                                   

justifying referral to the three-judge sentencing panel. 13  

                                                                                                



                            The  Collins decision was issued on November 2, 2012.  The three-judge  

                                                                                                                                                         



panel held its hearing in Seigle's case two weeks later.  

                                                                                                   



                           By that time, the State had already filed a petition for hearing in the Alaska  

                                                                                                                                                                  



 Supreme Court, asking that court to review this Court's decision in Collins.  

                                                                                                                                         



                            On  February  12,  2013,  about  two  months  after  the  three-judge  panel  

                                                                                                                                                                    



 sentenced Seigle, the supreme court granted the State's petition and agreed to review  

                                                                                                                                                                  

 Collins.14           However, one year later, after the legislature amended the three-judge panel  

                                                                                                                                                                     



 sentencing  statutes in response to  Collins,  the supreme court dismissed the State's  

                                                                                                                                                                 

petition as improvidently granted. 15  

                                                    



              The legislature's response to                               Collins  



                           In   the   spring of                2013,   while   the   State's   petition   for   hearing was                                             still  



pending before the supreme court, the Alaska Legislature responded to our decision in                                                                                       



 Collins  by enacting Session Law Act (SLA) 2013, Chapter 43.                                                                     In section 1(b) of this               



       12     Id.  at 798-99 (Bolger, J., dissenting).         



       13     Id. at 799 (Bolger, J., dissenting).  

                                                        



       14     See Supreme Court File No. S-14966 (Feb. 12, 2013).  

                                                                                                          



       15     See Supreme Court File No. S-14966 (Feb. 25, 2014).  

                                                                                                          



                                                                                   - 5 -                                                                               2545
  


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

session law, the legislature declared that it had never intended to create new grounds for                                                                                                                                       



referring a felony sex offender's case to the three-judge panel:                                                                                       



                                    (b)  The legislature finds that:                                  



                                                                        (1)  in 2006, the legislature did not intend,                                             

                                                      by    [enacting   increased   penalties   for   sexual  

                                                      felonies],   and   the   legislature   does   not   now  

                                                      intend[,] to create new or additional means for                                                                       

                                                      a defendant convicted of a sexual felony and                                                                       

                                                      sentenced    under    AS    12.55.125(i)    to    obtain  

                                                      referral to a three-judge panel;                                 



                                                                        (2)  the legislature did not, in 2006, intend                                              

                                                      nor does the legislature now intend for a court                                                               

                                                      to    create    new    or    additional    means    for    a  

                                                      defendant   convicted   of   a   sexual   felony   and  

                                                      sentenced    under    AS    12.55.125(i)    to    obtain  

                                                      referral to a three-judge panel.                                                  16  



In section 1(c) of this session law, the legislature further declared that it  intended  to  

                                                                                                                                                                                                                                  



overturn the majority decision in Collins and to endorse the position expressed in Judge  

                                                                                                                                                                                                                         



Bolger's dissenting opinion:  

                                                    



                                    (c)  It  is  the  intent  of  the  legislature  in  AS  12.55.165,  as  

                                                                                                                                                                                              

                                    amended  by  sec.  22  of  this  Act,  and  AS  12.55.175,  as  

                                                                                                                                                                                              

                                    amended  by  sec.  23 of this Act,  to overturn the majority  

                                                                                                                                                                              

                                    decision  in  Collins  v.  State,  287  P.3d  791  (Alaska  App.  

                                                                                                                                                                                       

                                    2012),  and  to  endorse  the  dissenting opinion  in  the  same  

                                                                                                                                                                                      

                                                  17  

                                    case. 



                                    To effect this legislative intent, the legislature amended AS 12.55.165 (the  

                                                                                                                                                                                                                               



statute governing referrals to the three-judge panel) by addingsubsection (c) that restricts  

                                                                                                                                                                                                                    



a sentencing judge's authority to refer a case to the panel:  

                                                                                                                                           



         16       Ch. 43,  1, SLA 2013.                      



         17       Id.  



                                                                                                               - 6 -                                                                                                          2545
  


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

                                                                                                       (c)  A court may not refer a case to [the] three-judge                                                                                                                                                              

                                                                    panel ...                                    if   the   defendant   is   being sentenced                                                                                                                                                       for   a   sexual  

                                                                     felony under AS 12.55.125(i) and the request for the referral                                                                                                                                                                                                              

                                                                     is based solely on the claim that the defendant, either singly                                                                                                                                                                                                                    

                                                                     or in combination, has                                                                        

                                                                                                       (1)   prospects   for   rehabilitation   that   are   less   than  

                                                                     extraordinary; or   

                                                                                                       (2)  a history free of unprosecuted, undocumented, or                                                                                                                                                                                                              

                                                                    undetected sexual offenses.                                                                 



At the same time, the legislature enacted a corresponding amendment to AS 12.55.175                                                                                                                                                                                                                                                                                                                  



(the statute defining the authority of the three-judge panel) by adding subsection (f).                                                                                                                                                                                                                                                                                                                                                                     



This new subsection states in pertinent part:                                                                                                                                                          



                                                                                                       (f)   A defendant being sentenced for a sexual felony                                                                                                                                                                                        

                                                                    under   AS   12.55.125(i)   may   not   establish,   nor   may   the  

                                                                    three-judge panel find under (b) of this section or any other                                                                                                                                                                                                                         

                                                                    provision of law,                                                                          that manifest injustice would result from                                                                                                                                                   

                                                                     imposition of a sentence within the presumptive range based                                                                                                                                                                                                                        

                                                                     solely on the claim that the defendant,                                                                                                                                                                          either singly or in                                                                  

                                                                     combination, has   

                                                                                                       (1)   prospects   for   rehabilitation   that   are   less   than  

                                                                     extraordinary; or   

                                                                                                       (2)  a history free of unprosecuted, undocumented, or                                                                                                                                                                                                              

                                                                    undetected sexual offenses.                                                                 



                                                                     These new laws went into effect on July 1, 2013, more than seven months                                                                                                                                                                                                                                                                       



after Seigle was sentenced in this case.                                                                                                                                                                   The following February, the Alaska Supreme                                                                                                                                                     



                                                                                                                                                                                                                                                                                                                                                                                                                                          18  

Court dismissed the State's petition for hearing in                                                                                                                                                                                                         Collins  as improvidently granted.                                                                                                                                                    



                                   The State's argument that                                                                                                            Collins  was never the law in Alaska                                                                                                                                                           



                                                                    As   we   explained earlier in this opinion, the State takes the position that                                                                                                                                                                                                                                                                                 



 Seigle's sentence is illegal because, when the three-judge panel sentenced Seigle, the                                                                                                                                                                                                                                                                                                                                                 



                  18              See  Supreme Court File No. S-14966 (Feb. 25, 2014).                                                                                                                                                                                  



                                                                                                                                                                                                                  - 7 -                                                                                                                                                                                                               2545
  


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

                                                                                                                                

panel relied in part on this Court's decision in Collins and, according to the State, our  



                                                               

decision in Collins was never the law in Alaska.  



                                                                                                                                  

                     The State's argument that Collins was never the law in Alaska hinges on  



                                                                                                                                

its contention that this Court's published decisions have no precedential value until this  



                                                                                                                                

Court's judgment "takes effect" under Alaska Appellate Rules 507(b) and 512(a) - that  



                                                                                                                     

is, until any petition for hearing to the Alaska Supreme Court is resolved and jurisdiction  



                             

returns to the trial court.  



                                                                                                                                    

                     Appellate Rule 507(b) declares that, unless this Court orders otherwise, a  



                                                                                                                              

judgment issued by this Court "takes effect and full jurisdiction returns to the trial court  



                                                                                                                                       

on  the  day  specified  in  Rule  512(a)  for  return  of  the  record  [to  the  trial court]."  



                                                                                                                                   

Appellate Rule 512(a) defines when the record on appeal is returned to the trial court at  



                                                                                                                          

the conclusion of an appeal.  Subsection (a)(2) of this rule states that, in Court of Appeals  



                                                                                                                                 

cases where a party petitions the supreme court to review our decision, the record on  



                                                                                                                                   

appeal shall be returned  to  the  trial court on the day after the petition for hearing is  



                                                                                                                         

denied  or,  if  the  petition  is  granted,  on  the  day  after  the  time  expires  for  seeking  



                                                                            

rehearing of the supreme court's decision on the merits.  



                                                                                                                          

                     The State argues that, under Rules 507(b) and 512(a), this Court's decision  



                                                                            

in Collins never took effect.  Here is the State's reasoning:  



                                                                                                                        

                     When this Court issued  Collins, the Court did not exercise our authority  



                                                                                                                               

under Rule 507(b) to declare that our decision in Collins would take effect on some date  



                                                                                                                                  

other than the date established by Rules 507(b) and  512(a).   Thus, our judgment in  



                                                                                                                                 

 Collins took effect on the date established in Rule 512(a) for return of the record to the  



                                                                                                                                

trial court.       Moreover,  because the State filed a petition for hearing in  Collins,  and  



                                                                                                                            

because the supreme court initially granted that petition, the time for returning the record  



                                                                                                                              

to the trial court did not arrive until February 26, 2014 - the day after the supreme court  



                                                                                                                         

dismissed the State's petition as improvidently  granted.                                   And by that time (indeed,  



                                                               - 8 -                                                          2545
  


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

 months before that time), the Alaska Legislature                                                                                                   had enacted SLA 2013, chapter 43,                                                                 



 which amended AS 12.55.165 and AS 12.55.175 in response to                                                                                                                                   Collins.  



                                        Thus,   the   State   concludes,   our   judgment   in   Collins   never   took   effect   



 because the effect of our judgment was stayed until late February 2014 and because the                                                                                                                                                                 



 legislature amended the pertinent sentencing statutes effective July 1, 2013.                                                                                                                                



                     Why we reject the State's argument                                          



                                        To   explain   why   we   reject   the   State's   argument,   we   must   explain   the  



 difference between an appellate court's "judgment" in a particular case (what used to be                                                                                                                                                                 



 called its "mandate" to the lower court) and an appellate court's "opinion" - that is, the                                                                                                                                                             

 court's decision as a generally applicable statement about the law.                                                                                                                               19  



                                        Alaska law formerly required an appellate court to issue a "mandate" at the  

                                                                                                                                                                                                                                                        

 conclusion of any appellate proceeding.20                                                                                   This "mandate" performed two functions:  it  

                                                                                                                                                                                                                                                            



 contained the appellate court's  directions to the lower court and it was the order that  

                                                                                                                                                                                                                                                     

 formally returned jurisdiction over the case to the lower court.21  

                                                                                                                                                                       



           19       See Malutin v. State                                        , 198 P.3d 1177, 1182                                               (Alaska App. 2009) (explaining, in the                                                              



 context of the former version of Appellate Rule 507, that "the appellate court's                                                                                                                                             opinion  was  

 its   statement   of   the   law,   while   the   appellate   court's   mandate   was   its   order   returning  

jurisdiction over                                the  case  to  the  lower  court,  and directing the                                                                                     lower  court  to  perform  

 whatever actions were necessary or proper to carry out the appellate court's decision in that                                                                                                                                                         

 particular case") (emphasis in original).                                            



           20  

                                    

                    Id. at 1181.  



           21  

                                                                                                                                                                                                                                                        

                    See id. ("[T]he mandate is the appellate court's order to the lower court, directing the  

                                                                                                                                                                                                                                                        

 lower court to take whatever further action is necessary and/or  appropriate in light of the  

                                                                                                                                                                                                                                          

 appellate court's decision. The 'spreading' of the mandate is the act that formally returns  

                                                                                                                                                                                                                                                          

jurisdiction over the case to the lower court.") (citing 16A Charles Alan Wright, Arthur R.  

                                                                                                                                                                                                                                          

 Miller, & Edward H. Cooper, Federal Practice and Procedure:  Jurisdiction and Related  

                                                                                                   

Matters   3987, at 735-36 (3d ed. 1999)).  



                                                                                                                          - 9 -                                                                                                                      2545
  


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

                                                                                      In 1983, the Alaska Appellate Rules were revised, and the requirement of                                                                                                                                                                                                                                                                                                                                                                                              



 a mandate was eliminated.                                                                                                                                             Appellate Rule 507(a) was revised to make it clear that "[t]he                                                                                                                                                                                                                                                                                               



 opinion   of   the   appellate   court   ...   shall constitute                                                                                                                                                                                                                                                                    its   judgment,   and   shall contain                                                                                                                                                                              its  



 directions to the trial court, if any.                                                                                                                                                                                     No mandate shall be issued."                                                                                                               



                                                                                      At the same time, Appellate Rules 507(b) and 512(a) were amended to their                                                                                                                                                                                                                                                                                                                                                                              



 current form, to clarify when the court's judgment (                                                                                                                                                                                                                                                                               i.e., its directions to the lower court                                                                                                                                                             



 in that particular case) became effective.                                                                                                                                                                                                                      Thus, when Rule 507(b) speaks of the date on                                                                                                                                                                                                                                           



which an appellate court's judgment "takes effect," it is referring to the date on which                                                                                                                                                                                                                                                                                                                                                                                                                                          



the court's decision takes effect                                                                                                                                                                    in the particular case being appealed                                                                                                                                                                                                             . Rule 507(b) does                                                                   



not govern when an appellate court's decision becomes precedent as a matter of law -                                                                                                                                                                                                                                                                                                                                                                                                                                                                    



that is, it does not govern when the appellate court's statements about the law become                                                                                                                                                                                                                                                                                                                                                                                                                                



binding on lower courts (and on the appellate court                                                                                                                                                                                                                                                                                             itself, under the doctrine of                                                                                                                                                         stare  



decisis).  



                                                                                      To answer the question of when an opinion of this Court becomes legal                                                                                                                                                                                                                                                                                                                                                                                



precedent for purposes of the lower courts (and for this Court), one must consult the                                                                                                                                                                                                                                                                                                                                                                                                                                                              



 statutes   creating the                                                                                                              Court   of   Appeals   and   defining its                                                                                                                                                                                                jurisdiction.     Alaska   Statute   



22.07.020(g) expressly declares that the decisions of this Court are binding precedent                                                                                                                                                                                                                                                                                                                                                                                                                   



until such time as they are affirmatively superseded by a decision of the Alaska Supreme                                                                                                                                                                                                                                                                                                                                                                                                                        



 Court:  



                                                                                      A final decision of the                                                                                                                               court   of   appeals is binding on the                                                                                                                                                                             

                                                                                       superior court and on the district court unless superseded by                                                                                                                                                                                                                                                                                                               

                                                                                      a decision of the supreme court.                                                                                                                                                                              22  



                      22                   See also                                              AS 22.07.030 ("In this section, 'final decision' means a decision or order,                                                                                                                                                                                                                                                                                                                                                        



 other than a dismissal by consent of all parties, that closes a matter in the court of appeals.");                                                                                                                                                                                                                                                                                                                                                                                                       

Alaska R. App. P. 302(a)                                                                                                                                      ("'Final decision' includes any decision or order of the court of                                                                                                                                                                                                                                                                                                                            

 appeals, other than a dismissal by consent of all parties, which closes a matter in the court                                                                                                                                                                                                                                                                                                                                                                                                                                          

 of appeals, whether or not it contemplates further proceedings in a trial court.").                                                                                                                                                                                                                                                                                                                                                            



                                                                                                                                                                                                                                                                     - 10 -                                                                                                                                                                                                                                                                      2545
  


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

                                      Thus, pursuant to this statute, if this Court formally publishes our decision                                                                                                           



in a case, the statements of law in that case are precedent, binding on the trial courts,                                                                                                                                        



unless and until those statements of law are superseded by a decision of the Alaska                                                                                                                                              



 Supreme Court.   



                                      Alaska Statute 22.07.020(g) codifies the principle of vertical                                                                                                          stare decisis                        ,  

                                                                                                                                                                                                                                 23      The  

under which lower courts are required to follow the precedent of higher courts.                                                                                                                                                        



statute is also in accord with the rule followed in most other jurisdictions - the rule that  

                                                                                                                                                                                                                                          



statements of law in  a  published decision of an intermediate appellate court must be  

                                                                                                                                                                                                                                              

followed unless and until they are overruled by a higher court.24  

                                                                                                                                                              



          23       See Auto Equity Sales, Inc. v. Super. Ct. of Santa Clara Cty.                                                                                                      , 369 P.2d 937, 939-40                     



(Cal. 1962) ("Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction                                                                                                                      

are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the                                                                                                                                                 

doctrine of stare decisis makes no sense. ... It would create chaos in our legal system if these                                                                                                                                       

courts were not bound by higher court decisions.").                                                    



          24  

                                                                                                                                                                                                                                            

                   See, e.g., Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980) ("[T]he decisions of the  

                                                                                                                                                                                                                                               

district courts of appeal represent the law of Florida unless and until they are overruled by  

                                                                                                                                                                                                                                     

this Court.");  State Farm Fire & Casualty Co. v. Yapejian, 605 N.E.2d 539, 540 (Ill. 1992)  

                                                                                                                                                                                                                                  

("A decision of the appellate court, though not binding on other appellate districts, is binding  

                                                                                                                                                                                                                                         

on the [trial] courts throughout the State."); Placido v. Citizens Bank & Trust Co., 379 A.2d  

                                                                                                                                                                                                                               

773, 779 (Md. App. 1977) ("Trial courts are bound by the decisions of the Court of Appeals,  

                                                                                                                                                                                                                       

until they may be overruled. Until then they are precedents to be followed and obeyed.");  

                                                                                                                                                                                                                                      

 Tebo v. Havlik, 343 N.W.2d 181, 185 (Mich. 1984) ("A decision by any panel of the Court  

                                                                                                                                                                                                                                            

of Appeals is, therefore,  controlling statewide until contradicted by another panel of the  

                                                                                                                                                                                                                                               

Court of Appeals or reversed or overruled by this Court. While the possibility of reversal or  

                                                                                                                                                                                                                             

contradiction may lessen a claim of reliance, it does  not  preclude it.") (internal citations  

                                                                                                                                                                                                                                               

omitted); State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010) (stating that the court of  

                                                                                                                                                                                                                               

appeals and district courts are "bound by supreme court precedent and the published opinions  

                                                                                                                                                                                                                                   

of  the  court  of  appeals");  State  v.  Nichols,  600  N.W.2d  484,  487  (Neb.  App.  1999)  

                                                                                                                                                                                                                                           

(criticizing lower court for failing to abide by court of appeals decision  and noting that  

                                                                                                                                                                                                                                       

Nebraska lawrequires trial judges to follow the published opinions of the intermediate court  

                                                                                                                                                                                                                                             

of appeals "until they are modified or overruled by the Supreme Court"); see also  Cal. Ct.  

                                                                                                                                                                                                                                            

R.  8.1115(d) (published opinion may be cited or relied on as soon as  it  is  certified for  

                                                                                                                                                                                                                 (continued...)  



                                                                                                                   - 11 -                                                                                                                2545
  


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

                        The   Alaska cases cited by the State in its cross-appeal do not dictate                                                         a  



contrary result.             All of those cases involve the question of when the                                      judgment  -  i.e., the   



mandate   -   of   this   Court   takes   effect   for   purposes   of   determining   an   individual  



defendant's rights or obligations.                             Those cases do not address                            the   issue of when a               

published decision becomes precedential law, binding on the lower courts.                                                           25  



                        Moreover, the State's interpretation of Rule 507(b) - i.e., its contention  

                                                                                                                                          



that  Rule  507(b)  governs  the  date  on  which  an  appellate  court's  decision  becomes  

                                                                                                                                           



precedent - is undercut by the very wording of the rule.  Rule 507(b) begins with the  

                                                                                                                                                      



clause "[u]nless the [appellate court's] opinion or order expressly states otherwise."  This  

                                                                                                                                                    



clause authorizes an appellate court to specify a different date on which its  judgment  

                                                                                                                                           



takes effect in that particular case.  Giving an intermediate appellate court this authority  

                                                                                                                                            



      24    (...continued)  



                                                                                                                                                       

publication or ordered published); Mich. Ct. R. 7.215(C)(2) ("A published opinion of the  

                                                                                                                                                        

Court of Appeals has precedential effect under the rule of stare decisis. The filing of an  

                                                                                                                                                    

application for leave to appeal to the Supreme Court or a Supreme Court order granting leave  

                                                                                                                                                        

to appeal does not diminish the precedential effect of  a published opinion of the Court of  

                                                                                                                                      

Appeals.").           See  generally  21  C.J.S.  Courts   202  ("[T]he  decision of  an intermediate  

                                                                                                                                                        

appellate court is the law of the jurisdiction until it is reversed or overruled by the court of  

                                                                                                                                                

last resort") (citing cases).  But see Kan. Sup. Ct. R. 8.03(j) (stating that, pursuant to Kansas  

                                                                                                                                                

court rules, a decision by a Kansas intermediate court is not binding on parties or the district  

                                                                                                                                                  

courts "pending the determination of the Supreme Court on the petition for review or during  

                                                                                                                                                       

the time in which to file a petition for review," although the decision can be cited for  its  

                    

persuasive value).  



      25  

                                                                                                                                                    

            See, e.g., Alex v. State , 210 P.3d 1225, 1227 (Alaska App. 2009) (determining when  

                                                                                                                                                   

judgment  of  Court  of  Appeals  became  final  for  purposes  of  deadline  for  filing  post- 

                                                                                                                                                    

conviction relief application); Murray v. State , 1990 WL 10509487, at *2 (Alaska App. Nov.  

                                                                                                                                                       

21, 1990) (unpublished) (determining date that Court of Appeals judgment takes effect for  

                                                                                                                                              

purposes of Criminal Rule 45 speedy trial calculation); Nitz v. State , 745 P.2d 1379,1380-81  

                                                                                                                                                      

 (Alaska App.  1987)  (determining when judgment  of  Court  of  Appeals  became  final  for  

                                                                                                                                                     

purposes of CriminalRule 45 speedy trial calculation); see also Singletary v. State, 583 P.2d  

                                                                                                                                                  

 847, 849 (Alaska 1978) (calculating time when defendant  could file, and trial court could  

                                                                                                                                             

consider, a motion to reduce sentence as the date jurisdiction returned to superior court).  



                                                                         - 12 -                                                                     2545
  


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

only makes sense if, by using the term "judgment," Rule 507(b) is referring solely to the                                                                                                                                                                                                                                                                    



appellate court's mandate - that is, its directions to the lower court.                                                                                                                                                                                              



                                                        We therefore reject the State's contention that a published opinion of this                                                                                                                                                                                                                        



Court has no precedential value while a petition for hearing is pending before the Alaska                                                                                                                                                                                                                                                     



 Supreme Court.   



                                                        Certainly, trialjudges                                                                  are free to express their reservations about one of our                                                                                                                                                     



decisions. And when the supreme court has granted a petition for hearing (thus declaring                                                                                                                                                                                                                                            



that it is actively debating the merits of this Court's decision), trial court judges                                                                                                                                                                                                                                                                may  



choose to stay proceedings in front of them until the petition for hearing is resolved and                                                                                                                                                                                                                                                                



the long-term precedential effect of this Court's decision is clarified.                                                                                                                                                                                                                        But lower courts                               



are not free to simply ignore the precedent established by this Court,                                                                                                                                                                                                                                           even when a                                        



petition for hearing is pending.                                                                                                   Our published decisions are precedent unless and until                                                                                                                                                              



the supreme court affirmatively overrules or vacates them.                                                                                                                                                                  



                                                        Returning to Seigle's case, the supreme court never overruled this Court's                                                                                                                                                                                                         



decision in                                  Collins, so it was binding precedent on the lower courts until the legislature                                                                                                                                                                                                    



amended the sentencing statutes,                                                                                                             effective July 1, 2013.                                                                             Thus, when the three-judge                                              



panel sentenced Seigle in November 2012,                                                                                                                                        Collins  was good law and it was not error for                                                                                                                                



the panel to rely on                                                              Collins.  



                                                                                                                                                                                                                                                                                          

                             The State's argument that the three-judge panel misapplied Collins  



                                                                                                                                                                                                                                                                                                                                                             

                                                        The State also claims that, even if Collins was controlling precedent at the  



                                                                                                                                                                                                                                                                                                                             

time of the three-judge sentencing panel's  decision, the panel nevertheless misapplied  



                                                                                                                                                                                                                                                                                                                                        

 Collins.  But the State's argument is based both on a misunderstanding of our decision  



                                                                                                                                                                                                                                                                                                                                                            

in  Collins  and  on a misunderstanding of how sentencing courts should address the  



                                                                                                                                                                                                                                                                                                                             

question of manifest injustice in the context of an individual presumptive sentencing  



case.  



                                                                                                                                                                          - 13 -                                                                                                                                                                          2545
  


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

                       As   we   have   already   explained,   Collins   recognized   two   non-statutory  

mitigating factors that might apply to defendants being sentenced for sexual felonies.                                                               26  



Under Collins, a defendant being sentenced for a sexual felony could seek referral to the  

                                                                                                                                                   



three-judge panel if the defendant could show by clear and convincing evidence that  

                                                                                                                                                 



either (1) he or she lacked a documented history of prior sex offenses, or (2) he or she  

                                                                                                                                                  

had "normal" prospects for rehabilitation.27  

                                                  



                       But Collins did not alter the analysis that a sentencing judge is required to  

                                                                                                                                                     



conduct when a defendant seeks referral to the three-judge panel on the ground that a  

                                                                                                                                                      



sentence within the presumptive range would be manifestly unjust.  When a defendant  

                                                                                                                                       



asserts that a sentence within the applicable presumptive range would result in manifest  

                                                                                                                                         



injustice, the sentencing judge is required to employ the  Chaney criteria to assess the  

                                                                                                                                                  



totality of the circumstances of the defendant's case, and to then determine whether all  

                                                                                                                                                    



sentences  within  the  applicable  presumptive  range  (as  adjusted  for  any  statutory  

                                                                                                                                       

aggravators and mitigators that the court has found) would be "obviously unfair."28                                                             The  

                                                                                                                                                 



terms "obviously unfair" and "shocks the conscience" are used interchangeably in our  

                                                                                                                                                  

case law to describe a finding of manifest injustice.29  

                                                                          



      26    Collins v. State          , 287 P.3d 791, 795-97 (Alaska App. 2012).                    



      27    Id.  



      28  

                                                                                                       

            See Duncan v. State, 782 P.2d 301, 304 (Alaska App. 1989).  



      29    See, e.g., Moore v. State , 262 P.3d 217, 221 (Alaska App. 2011); Dancer v.State , 715  

                                                                                                                                                  

P.2d 1174, 1177 (Alaska App. 1986); Lloyd v. State , 672 P.2d 152, 154 (Alaska App. 1983)  

                                                                                                                                              

("If a judge believed imposition of a presumptive sentence would be  obviously unfair, we  

                                                                                                                                                   

think it highly likely that he would also find that such a sentence would shock his conscience.  

                                                                                                                                                          

Conversely,  a  judge  whose  conscience  was  shocked  by  the   prospect  of  imposing  a  

                                                                                                                                                      

presumptive  sentence  could  be  expected  to  find  that  the  sentence  would  obviously  be  

                                                                                                                                                    

unfair.").  

   



                                                                       - 14 -                                                                   2545
  


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

                                                          Because the sentencing court is required to base its conclusion regarding                                                                                                                                                                                                           



manifest injustice on the totality of the circumstances (                                                                                                                                                                                        i.e.,   the facts                                                     of the current                 



 criminal episode, plus                                                                           the   history and underlying circumstances of the offender), the                                                                                                                                                                                                      



 sentencing court's assessment will often include circumstances                                                                                                                                                                                                                             that,   standing alone,   



would be insufficient to warrant a departure from the applicable presumptive sentencing                                                                                                                                                                                                                                                   



range.     For   example,   a   sentencing   judge   might   reject   a   defendant's   assertion   of  



 "extraordinary potential for rehabilitation," but if the defendant has favorable prospects                                                                                                                                                                                                                                                  



 for rehabilitation, the judge would still consider those favorable prospects as part of the                                                                                                                                                                                                                                                                             



totality    of    the    circumstances    when    determining    whether    a    sentence    within    the  



presumptive range would be manifestly unjust under the                                                                                                                                                                                                        Chaney   criteria.    Similarly,  



there may be situations where a sentencing judge is legislatively precluded (because of                                                                                                                                                                                                                                                                                      



the existence of certain aggravating factors) from sending the defendant's case to the                                                                                                                                                                                                                                                                                  



three-judge sentencing panel on the basis of extraordinary potential for rehabilitation.                                                                                                                                                                                                                                                                                                   



Nevertheless, if the defendant asserts that any sentence within the applicable presumptive                                                                                                                                                                                                                                        



range would be manifestly unjust as applied to him, the sentencing judge would still be                                                                                                                                                                                                                                                                                    



required to consider the defendant's potential for rehabilitation as part of the totality of                                                                                                                                                                                                                                                                                 



the circumstances under the                                                                                                  Chaney   criteria in deciding whether "manifest injustice"                                                                                                                                                      



would result from a sentence within the presumptive range in that case.                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                                                                              30  In Duncan,  

                                                          We addressed and clarified this very issue in                                                                                                                                               Duncan v. State                                                       .                     



this Court was called upon to explain the implications of our earlier decision in Totemoff  

                                                                                                                                                                                                                                                                                                                                                

v. State.31  

          



                                                          The defendant in Totemoff was convicted of first-degree sexual assault, and  

                                                                                                                                                                                                                                                                                                                                                                       



he was subject to a 15-year presumptive term of imprisonment because  of  a  prior  

                                                                                                                                                                                                                                                                                                                                                              



               30            782 P.2d 301 (Alaska App. 1989).                                                                                



               31            739 P.2d 769 (Alaska App. 1987).  

                                                                                                                                             



                                                                                                                                                                                - 15 -                                                                                                                                                                                2545
  


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

                                    32  

burglary conviction.                      Totemoff's sentencing judge concluded that Totemoff's prior                                              



burglary was "fairly minor ... as felonies go," and that the de minimis nature of this prior                                                       

                                                                                                    33     The  judge  therefore  sent  

offense   constituted   a   non-statutory   mitigating   factor.                                                                                   



Totemoff's case to the three-judge panel based on this factor, but the three-judge panel  

                                                                                                                                                  

declined to adjust Totemoff's sentence, leading to an appeal.34  

                                                                                                 



                        In Totemoff's appeal, we held that it was improper for the sentencing judge  

                                                                                                                                                   



to adopt a non-statutory mitigatingfactor (and to send Totemoff's case to the three-judge  

                                                                                                                                        



panel based on that factor) when the legislature had expressly rejected that same factor  

                                                                                                                                                 

for inclusion among the mitigating factors codified in AS 12.55.155(d).35                                                         We noted that  

                                                                                                                                                     



the legislature had originally created a statutory mitigator for defendants  whose prior  

                                                                                                                                                   



felonies were of lesser seriousness, but the legislature had later repealed this mitigator  

                                                                                                                                            



because  it could be viewed as rewarding defendants who progressed to more serious  

                                                                                                                                               

crime  over  time.36                 And  we  held  that,  after  the  legislature  has  expressly  rejected  a  

                                                                                                                                                         



particular circumstance for inclusion as a statutory mitigating factor, a sentencing court  

                                                                                                                                                   

can no longer treat this same circumstance as a non-statutory mitigator.37  

                                                                                                               



                        The facts of Duncan  were similar to the situation presented in  Totemoff.  

                                                                                                                                                             



Duncan's prior felony was a de minimis offense (forging checks in the amounts of $12  

                                                                                                                                                     



      32    Id.  at 770.   



      33    Id. at 773.  

                               



      34  

                                      

            Id. at 773-74.  



      35    Id. at 776-77.  

                                     



      36  

                      

            Id. at 776.  



      37    Id.  



                                                                         - 16 -                                                                     2545
  


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

                                                                                                                                                      38  

and $7) and he committed this felony when he was eighteen years old.                                                                                       Based on this,         



as well as the other circumstances of the case, Duncan's sentencing judge concluded that                                                                                           



the prescribed presumptive term for                                               Duncan's current offense would be manifestly                                      

unjust, so the judge referred Duncan's case to the three-judge panel.                                                                              39  



                             But  when  Duncan's  case  was  presented  to  the  three-judge  panel,  the  

                                                                                                                                                                                    

members of the panel concluded that they had no jurisdiction to sentence Duncan.40   The  

                                                                                                                                                                                  



panel interpreted Totemoff as absolutely prohibiting them from considering the mitigated  

                                                                                                                                                                        



nature of Duncan's prior offense in any fashion - either as an independent non-statutory  

                                                                                                                                                               



mitigating factor, or even as one of the several circumstances that could be considered  

                                                                                                                                                                    



when  deciding  whether  the  prescribed  presumptive  term  was  manifestly  unjust  in  

                                                                                                                                                                                      

Duncan's case.41                       The panel's ruling on this issue led to an appeal.42  

                                                                                                                                



                             In  our  decision  in  Duncan,  we  explained  that  the  three-judge  panel's  

                                                                                                                                                                           

interpretation of Totemoff was incorrect.43                                                  Totemoff held that the mitigated nature of a  

                                                                                                                                                                                         



prior felony was not a non-statutory mitigator that,  standing alone,  could justify a  

                                                                                                                                                                                        

departure from the prescribed presumptive term.44                                                               But the mitigated nature of a prior  

                                                                                                                                                                                



offense nevertheless remained a circumstance that could be considered, in conjunction  

                                                                                                                                                                  



       38     Duncan , 782 P.2d at 301.
                             



       39     Id.
  



       40  

                           

              Id. at 302.
  



       41  

                      

              Id.
  



       42  

                           

              Id. at 303.
  



       43  

                           

              Id. at 304.
  



       44  

                      

              Id.
  



                                                                                        - 17 -                                                                                    2545
  


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

with the other circumstances of the defendant's case, when the three-judge panel decided                                                            

whether the presumptive term was manifestly unjust as applied to the defendant.                                                                       45  



                         As we explained in Duncan, when a sentencing court decides whether a  

                                                                                                                                                                



sentence  within  the  prescribed  presumptive  range  would  be  manifestly  unjust  in  a  

                                                                                                                                                               



particular  defendant's  case,  the  sentencing  court  must  consider  the  totality  of  the  

                                                                                                                                                           



circumstances surrounding the case - includingthe defendant's background, education,  

                                                                                                                                               



character, and prior criminal history, as well as the seriousness of the current offense -  

                                                                                                                                                             



in light of the sentencing goals of rehabilitation, deterrence, isolation, and affirmation of  

                                                                                                                                                              

community norms.46                       Thus, "[t]he nature and seriousness of an offender's prior criminal  

                                                                                                                                                   



misconduct are a legitimate part of the totality of the circumstances [to be] considered  

                                                                                                                                              

in the overall determination of manifest injustice."47  

                                                                           



                         We  cautioned  that  "neither  an  individual  sentencing  judge  nor  the  

                                                                                                                                                           



three-judge panel would be justified in basing a finding of manifest injustice entirely or  

                                                                                                                                                              



primarily on the mitigated nature of a prior felony conviction" - because such a finding  

                                                                                                                                                     



"would elevate the mitigated nature of the prior offense to the level of a non-statutory  

                                                                                                                                        

mitigating factor, thereby subverting the intent of the legislature."48                                                         But this rule does  

                                                                                                                                                         



not foreclose a sentencing judge, or the three-judge panel, from considering the mitigated  

                                                                                                                                                 



      45    Id.   



      46  

                                                                                                                                                

            Id.; see State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005 (codifying  

                                                                                                                                                              

Chaney  sentencing criteria); see also  Alaska Const. Art. I,  12 (describing the goals of  

                                                                                                                                                              

criminal administration as "the need for protecting the public, community condemnation of  

                                                                                                                                                   

the offender, the rights of victims of crimes, restitution from the offender, and the principle  

      

of reformation").  



      47  

                                                            

            Duncan , 782 P.2d at 304.  



      48  

                   

            Id.  



                                                                            - 18 -                                                                        2545
  


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

nature of an offender's prior offense as                                                part   of   the   totality of circumstances to be                                         

weighed when assessing the question of manifest injustice.                                                                 49  



                            Our holding in Duncan  applies to cases involving the two non-statutory  

                                                                                                                                                         



mitigators recognized in  Collins.   Because the legislature has expressly overridden our  

                                                                                                                                                                                



decision  in  Collins,  neither  of  the  non-statutory  mitigators  discussed  in  Collins  (a  

                                                                                                                                                                                  



defendant's lack of prior sex offenses, or a defendant's good prospects for rehabilitation)  

                                                                                                                                                           

can be treated as non-statutory mitigators as of July 1, 2013.50   The legislature also made  

                                                                                                                                                                            



clear that these two factors, standing alone, are insufficient as a matter of law to justify  

                                                                                                                                                                          

a referral to the three-judge sentencing panel under the manifest injustice prong.51  

                                                                                                                                                           



                            But this does not mean that these factors play no role in the court's overall  

                                                                                                                                                                         



Chaney analysis; they still remain factors to be considered as part of the larger totality  

                                                                                                                                                                        



of the circumstances that the sentencing court must assess in determining whether the  

                                                                                                                                                                                



prescribed  presumptive  range  of  imprisonment  is  manifestly  unjust  in  a  particular  

                                                                                                                                                                   



defendant's case.  Indeed, to conclude otherwise would create obvious due process and  

                                                                                                                                                                                



equal protection problems.  The Chaney criteria apply to all sentences under Alaska law,  

                                                                                                                                                                               



and  the  legislative  intent  behind  the  2013  amendments  to  AS  12.55.165  and  AS  

                                                                                                                                                                                



       49     Id.  



       50     See  AS12.55.165(c)                       (prohibitinga   court from referring a case to the three-judge panel   



if the request is "             based solely on the claim                            that the defendant, either singly or in combination,                     

has (1) prospects for rehabilitation that are less than extraordinary; or (2) a history free of                                                                                    

unprosecuted, undocumented, or undetected sexual offenses") (emphasis added).                                                                                      



       51  

                                                                                                                                                                                 

              See AS 12.55.175(f) (prohibiting a finding of manifest injustice "based solely on the  

                                                                                                                                                             

claim that the defendant, either singly or in combination, has (1) prospects for rehabilitation  

                                                                                                                                                                                   

that are less than extraordinary; or (2) a history free  of unprosecuted, undocumented, or  

                                                                                                   

undetected sexual offenses") (emphasis added).  



                                                                                      - 19 -                                                                                  2545
  


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

 12.55.175  was precisely to ensure that sex offenders were not judged under standards                                               

different  than the standards that apply to other offenders.                                      52  



                       Here,  the  sentencing  judge  referred  Seigle's  case  to  the  three-judge  

                                                                                                                                 



sentencing panel based both on a finding of extraordinary potential for rehabilitation and  

                                                                                                                                               



on a finding that any sentence within the presumptive range would be manifestly unjust.  

                                                                                                                                                       



The  three-judge  panel rejected  the  non-statutory  mitigating factor  of                                                   extraordinary  

                                                                                                                              



potential for rehabilitation, finding that Seigle only had good potential for rehabilitation.  

                                                                                                                                                       



But the three-judge panel agreed with the sentencing judge that a sentence within the  

                                                                                                                                               



presumptive range of 20 to 30 years would be manifestly unjust in Seigle's particular  

                                                                                                                                     



case.  



                       The State argues that the three-judge panel erred in considering Seigle's  

                                                                                                                                        



good  prospects  for  rehabilitation  as  part  of  its  larger  manifest  injustice  analysis.  

                                                                                                                                                       



According to the State, once the three-judge panel concluded that Seigle's prospects for  

                                                                                                                                                



rehabilitation  were  insufficient,  standing  alone,  to  justify  a  departure   from   the  

                                                                                                                                              



presumptive range, the panel was precluded from considering those good prospects for  

                                                                                                                                                



rehabilitation  for  any  other  purpose  -  including  as  part  of  the  totality  of  the  

                                                                                                                                               



circumstances that led the panel to conclude that a sentence within the presumptive range  

                                                                                                                                            



would be manifestly unjust in Seigle's case.  

                                                                   



                       But as we have just explained,  a  determination of whether a particular  

                                                                                                                                     



sentence  will  result  in  manifest  injustice  must  be  made  under  the  totality  of  the  

                                                                                                                                               



circumstances presented by the defendant's case.   It was therefore appropriate for the  

                                                                                                                                                



three-judge panel to consider all of the circumstances of Seigle's case, including those  

                                                                                                                                            



circumstances (such as Seigle's age, lack of prior criminal history, and good employment  

                                                                                                                                



history) that led to the originalconclusion that he had "good prospects" for rehabilitation.  

                                                                                                                              



      52    See  Ch. 43,  1, SLA 2013.            



                                                                      - 20 -                                                                 2545
  


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

                           It was also appropriate for the three-judge panel to consider the legislative                                                     



findings that accompanied the 2006 sentencing increases when assessing whether it                                                                                           

                                                                                                                                                            53    These  

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



legislative findings continue to provide guidance to  the courts by explaining why the  

                                                                                                                                                                         



legislature believed that it was necessary to greatly increase the sentences for these types  

                                                                                                                                                                     



of  offenders  and  these  types  of  offenses.                                               Those  findings  therefore  provide  the  

                                                                                                                                                                        



framework for understanding the legislative intent behind the presumptive  ranges for  

                                                                                                                                                                         



sexual felonies,  and they are a critical tool for the courts in assessing when,  in the  

                                                                                                                                                                         

legislature's own words, a case may "cry out for mercy."54  

                                                                                                    



              The State'sargument that the three-judge panel abdicated its responsibility  

                                                                                                                                      

              to make an independent manifest injustice finding  

                                                                                                      



                           The State's final argument is that the three-judge sentencing panel failed  

                                                                                                                                                                    



to independently consider whether the presumptive sentence would be manifestly unjust  

                                                                                                                                                                   



in Seigle's case.  We find no merit to this claim.  

                                                                                     



                           As already mentioned,  the sentencing judge in this case,  Judge Volland  

                                                                                                                                                               



(who was also the trial judge), found that it would be manifestly unjust to sentence Seigle  

                                                                                                                                                                    



to a prison term within the presumptive range.   Judge Volland further declared that, in  

                                                                                                                                                                            



       53     See  2006 Senate Journal 2209-12.                                   



       54  

                                                                                                                                                                          

             Id. at 2214 (noting that "the criminal justice system often weeds these cases out in the  

                                                                                                                                                                     

referral and plea bargaining process" but that "the courts of Alaska will be able to avoid  

                                                                                                                                                                            

manifestly unjust sentences in appropriate cases" by applying statutory mitigating factors or  

                                                                                                                                                                  

referring cases to the three judge-panel); see also Lloyd v. State, 672 P.2d 152, 154 (Alaska  

                                                                                                                                                                   

App. 1983) ("Although the legislature decided to curtail the sentencing discretion of judges  

                                                                                                                                                      

by  enacting  the  highly  regimented  system  of  presumptive  sentencing,  it  nevertheless  

                                                                                                                                                            

recognized that cases will inevitably arise in which the subjective judgment of the sentencing  

                                                                                                                                                               

court should take precedence over the objective limits imposed by statute.   The manifest  

                                                                                                                                                    

injustice standard and the three-judge sentencing panel were created for such cases.").  



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

his view, a sentence of 10 years to serve would appropriately serve the                                                                                                                                                                                                                                         Chaney  criteria  



in Seigle's case.                                                       In making this finding, the judge relied in part on his own assessment                                                                                                                                                                                     



of the witnesses and the evidence presented at trial.                                                                                                                                                   



                                                          The                            three-judge                                                   panel                               rejected                                        Judge                                 Volland's                                              sentencing  



recommendation, ultimately sentencing Seigle to serve 15 years.                                                                                                                                                                                                                  This sentence was five                                                            



years below the low end of the applicable presumptive range, but five years more than                                                                                                                                                                                                                                                                           



what Judge Volland believed was necessary under the                                                                                                                                                                                          Chaney   criteria.    Although the   



three-judge panel's explanation for its sentence is not as detailed as Judge Volland's, it                                                                                                                                                                                                                                                                                  



is clear that the panel did not abdicate their responsibility to independently assess the                                                                                                                                                                                                                                                                           



totality   of   the   circumstances   presented   in   Seigle's   case   and   to   make   their   own  



determination of manifest injustice under the                                                                                                                                                    Chaney  criteria.  



                                                          We further note that even if we had concerns about the three-judge panel's                                                                                                                                                                                                                 



assessment of the relative weight of various sentencing criteria, our authority to remedy                                                                                                                                                                                                                                                         



any perceived flaws is limited.                                                                                                    Seigle did not appeal his sentence, and the State's right                                                                                                                                                                   



to appeal a sentence "is limited by the prohibitions against double jeopardy contained in                                                                                                                                                                                                                                                                                 

the United States Constitution and the Alaska Constitution."                                                                                                                                                                                                    55  



                                                          Although the State frames its cross-appeal as addressing only the "legality"  

                                                                                                                                                                                                                                                                                                                                            



of the sentence that Seigle received, many of the State's arguments are not directed at the  

                                                                                                                                                                                                                                                                                                                                                                      



panel's authority to impose the sentence in this case, but rather at the panel's exercise of  

                                                                                                                                                                                                                                                                                                                                                                          



its sentencing discretion to impose a sentence that the State apparently perceives as too  

                                                                                                                                                                                                                                                                                                                                                                     



lenient.  Pursuant to AS 22.07.020(b) and (d), the State is entitled to challenge a criminal  

                                                                                                                                                                                                                                                                                                                                            



 sentence on the ground that it is too lenient, but in such cases, this Court has no authority  

                                                                                                                                                                                                                                                                                                                                            



               55            AS 22.07.020.   



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

to   revise   the   defendant's   sentence.     We   are   limited   to   issuing an                           advisory   opinion  

disapproving the sentence.                56  



                     Here,   the  three-judge  panel  concluded,  after  considering  permissible  

                                                                                                                        



factors, that manifest injustice would result from  imposition of a sentence within the  

                                                                                                                                     



presumptive  range.               The  three-judge  panel was  therefore  authorized  under  former  

                                                                                                                               



AS 12.55.175 to impose the sentence that it did.  

                                                                       



                     To the extent that the State seeks to challenge Seigle's sentence as illegal,  

                                                                                                                                 



we conclude that the challenge has no merit.  And to the extent that the State seeks to  

                                                                                                                                       



challenge Seigle's sentence as overly lenient, we likewise conclude that the challenge has  

                                                                                                                                     



no  merit.         Having  independently  reviewed  the  sentencing  record  in  this  case,  we  

                                                                                                                                     



conclude that the findings of the trial judge and the three-judge panel are well-supported  

                                                                                                                   

by the record, and that the sentence Seigle received was not clearly mistaken.57  

                                                                                                            



           Conclusion  

                               



                     The sentencingdecision of the three-judge sentencingpanelis AFFIRMED.  

                                                                                                                      



     56    AS 22.07.020(b);           see also Forster v. State            , 236 P.3d 1157, 1173 (Alaska                App. 2010).   



     57    See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).  

                                                                                            



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