Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Thomas v. State (1/5/2018) ap-2579

Thomas v. State (1/5/2018) ap-2579


             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 @



                                                                                                Court of Appeals No. A-12853  

                                                   Petitioner,                               Trial Court No. 3AN-14-8238 CR  


                                                                                                            O  P  I  N  I  O  N  


                                                   Respondent.                                    No. 2579 - January  5, 2018  

                         Petition  for  Review  from  the  Superior  Court,  Third  Judicial  


                         District, Anchorage, Kevin M. Saxby, Judge.  

                         Appearances: Michael T. Schwaiger, Assistant Public Defender,  



                          and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  


                         Petitioner.   Tamara E. De Lucia, Assistant Attorney General,  


                         Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,  


                         Attorney General, Juneau, for the Respondent.  

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



                         Judge ALLARD.  

                         This petition for review involves a superior court's rejection of a plea                                                            

agreement in a murder case.                              For the reasons explained in this opinion, we grant the                                               

petition and vacate the superior court's decision.                                               On remand, we direct the superior                   

court to reconsider the plea agreement with the guidance provided here.                                                         

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

                                      Underlying facts and procedural history                                                                                                                                            

                                                                        In 2014, David Joseph Thomas was indicted for first- and second-degree   

murder for the death of his girlfriend, Linda Bower. Thomas confessed that he had killed                                                                                                                                                                                                                                                                                                                                                             

Bower - first to his brother and then separately to the police, after turning himself in to                                                                                                                                                                                                                                                                                                                                                                             


                                                                        According to the parties' briefing and the presentence report, Thomas was                                                                                                                                                                                                                                                                                                             

heavily intoxicated at the time of the murder.                                                                                                                                                                                                      Thomas reported having ingested a large                                                                                                                                                       

amount of vodka and over-the-counter medication prior to taking Bower to his house to                                                                                                                                                                                                                                                                                                                                                                                    

watch movies.                                                                   He remembered little of what happened thereafter, although he recalled                                                                                                                                                                                                                                                                                 

waking to find himself strangling Bower and then losing consciousness again. The next                                                                                                                                                                                                                                                                                                                                                                       

thing he remembered was waking up on the floor of his bedroom, with Bower lying                                                                                                                                                                                                                                                                                                                                                                      

unmoving on thebed. Thomas                                                                                                                                         attempted mouth-to-mouthresuscitation;thenhevomited                                                                                                                                                                                                                 

and again lost consciousness.                                                                                                                                    After Thomas turned himself in, the police searched the                                                                                                                                                                                                                                          

residence; they found an empty bottle of vodka and vomit in Thomas's bedroom.                                                                                                                                                                                                                                                                                                                     

                                                                        Thomas   accepted   responsibility   for   killing   Bower   and   reached   a   plea  

agreement with the State. Under the terms of this agreement, Thomas would plead guilty                                                                                                                                                                                                                                                                                                                                                             

to second-degree murder and he would receive a sentence of 75 years' imprisonment                                                                                                                                                                                                                                                                                

with 25 years suspended (50 years to serve).                                                                                                                                                               

                                                                        At thetimeofThomas's                                                                                                           offense,thecrimeofsecond-degreemurdercarried                                                                                                                                                                                           


a mandatory minimum sentence of 10 years and a maximum sentence of 99 years.                                                                                                                                                                                                                                                                                                                                                                               The  


crime of first-degree murder carried a mandatory minimum sentence of 20 years and a  

                   1                Former AS 12.55.125(b) (2014).  In 2016, the legislature increased the mandatory                                                                                                                                                                                                                                                                                                       

minimum sentence for both second-degree murder and first-degree murder.                                                                                                                                                                                                                                                                                                                              The mandatory  

minimum sentence for second-degree murder is now 15 years with a maximum of 99 years.                                                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                             - 2 -                                                                                                                                                                                                                     2579

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


maximum sentence of 99 years.                              In  Page v. State           , this Court announced a benchmark       

sentencing range of 20-30 years to serve for first felony offenders convicted of second-                                                 

                          3                                                                                                4  

degree murder.                                                                                                                             

                             This benchmark range can be exceeded for good cause,  and the parties  


agreed that good cause existed here to exceed the Page benchmark.  


                       At the change of plea hearing, the victim's parents told the superior court  


that they thought Thomas's sentence under the plea agreement was improperly lenient.  


The parents were particularly opposed to the fact that the plea agreement did not contain  


a restriction on Thomas's eligibility to be considered by the Parole Board for release on  


discretionary parole.  Under AS 33.16.090(b)(1), a defendant convicted of murder is  


eligible to be considered for discretionary parole after serving one-third of their active  


term of imprisonment.  


                       After hearing from the parents and the parties, the judge conditionally  


accepted Thomas's guilty plea.  But the judge declared that he would defer his final  


decision on whether to accept the negotiated sentence until a presentence report was  



                       In  a  sentencing  memorandum  submitted  to  the  court,  the  prosecutor  


explained the State's reasons for entering into the negotiated agreement. With regard to  


the level of the charge, the prosecutor explained that, given the evidence of Thomas's  


substantial intoxication, the State would have significant difficulty proving the specific  

      2     Former AS 12.55.125(a) (2014).  The mandatory minimum sentence for first-degree                    

murder is now 30 years with a maximum sentence of 99 years.  

      3    Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).  On petition, the State confirms  


that Thomas is a first felony offender (although it notes that the trial prosecutor had asserted  


that a prior Montana conviction might possibly qualify as a felony under Alaska law).  


      4     See Carlson v. State, 128 P.3d 197, 203-04 (Alaska App. 2006).  

                                                                       -  3 -                                                                2579

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


intent necessary to convict Thomas of first-degree murder.                                                                                       The prosecutor also noted                          

that Thomas had accepted responsibility for the killing, and that he had turned himself                                                                                                        

in and confessed to the crime.                           

                                With regard to the negotiated sentence, the prosecutor characterized the                                                                                                  

agreed-upon sentence - 75 years' imprisonment with 25 years suspended - as the                                                                                                                            

equivalent   of   a   first-degree   murder   sentence   imposed   for   a   second-degree   murder  

conviction.  The prosecutor also noted that Thomas's sentence of 50 years to serve far                                             

exceeded the                    Page  benchmark range of 20-30 years.                                                          6  


                                The author of the presentence report agreed with the State that Thomas's  


substantial intoxication played a role in the crime and the author was critical of Thomas's  


failure to address his problems with substance abuse. The presentence investigator also  


noted, however, that Thomas's "grief, guilt, and remorse for his crime appear to be real,"  


and that Thomas "does not present as a criminally minded individual, but as a man who  


has committed a horrendous criminal act."  


                                At the sentencing hearing, Thomas and the State again explained why they  


believed that the court should accept the negotiated plea and sentence, and why they  


believed that the  Chaney criteria were met by a sentence of 75 years with 25 years  


suspended in this case. The victim's parents reiterated their opposition to the negotiated  


sentence and their particular opposition to the fact that Thomas would be eligible for  


discretionary parole consideration after serving one-third of his sentence.  


                                The victim's  parents also  presented  a memorial photo  montage of the  


victim's life. This photo montage was set to music played and sung by the victim herself  


(the Beatles song, "Blackbird").  

        5       See AS 11.81.900(a)(2).  

        6       Page, 657 P.2d at 855.  

                                                                                                   - 4 -                                                                                             2579

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

                    At the conclusion of this hearing, the superior court judge rejected the  


negotiated sentence as too lenient.  The judge's primary reason for rejecting the plea  


agreement appears to have been the absence of any restriction on Thomas's eligibility  


for discretionary parole consideration.  The judge stated that, in his view, Thomas had  


intentionallykilledhis girlfriend, notwithstanding theevidenceofhis severeintoxication,  


and that Thomas was therefore guilty of the more serious crime of first-degree murder.  


The judge further declared that it would "cheapen the crime" if Thomas were eligible to  


apply for discretionary parole after serving only one-third of the 50-year active term of  


imprisonment provided for in the plea agreement. The judge also indicated his belief that  


Thomas should remain in prison until he "aged out" of criminal behavior. According to  


the judge, this "aging out" generally happened around 50 years of age.  


                     This petition followed.  


           The various issues raised by the proceedings in this case  


                     The parties raise several significant legal issues in their pleadings to this  


Court.  Chief among these issues is the scope of a trial court's authority to reject a plea  


agreement, as well as the standard that a trial court should employ when reviewing a  


negotiated plea agreement.  


                     The State asserts that the trial court's role in approving or disapproving a  


plea agreement is a limited one, circumscribed by considerations of separation of powers  


and the court's more limited knowledge of the case in comparison to the parties.  The  


State further asserts that a trial court's assessment of whether an agreed-upon sentence  


is too lenient is akin to an appellate court's assessment of whether a sentence is "clearly  


                                                               -  5 -                                                        2579

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


mistaken."   That is, the trial court should limit its role to evaluating whether the agreed-                                                          

upon sentence is within the permissible range of sentences that a reasonable judge could                                                                   

impose under the circumstances, rather than determining what the judge would impose                                                                     



in the first instance.                   The State contends that, in this case, the sentence was well within  


that range of permissible  sentences that a reasonable judge would impose, and the  


superior court therefore should have accepted the plea agreement.  


                         Thomas separately argues that the court failed to provide adequate reasons  


for its rejection of the negotiated sentence, and Thomas asserts that the court's analysis  


of the negotiated sentence reflects a flawed understanding of the Chaney criteria and the  


governing law on discretionary parole.   Thomas also points to the court's failure to  


compare Thomas's case to the full range of conduct encompassed by the second-degree  


murder  statute,  and  the  court's  failure  to  recognize  the  negotiated  sentence  as  an  


aggravated sentence, well above the Page benchmark.  


                         Both parties also point to the role that emotion may have played in the  


court's rejection of the plea agreement, and they question the ability of the judge to  


neutrally  assess  the  appropriateness  of  the  negotiated  sentence  in  the  immediate  


aftermath of an emotionally fraught sentencing hearing involving a memorial photo  


montage of the victim, set to music.  


                         We agree with the parties that these are important issues.  However, we  


conclude that we do not need to resolve all of these issues at this time.  Instead, we  


conclude that the appropriate course of action at this juncture is to alert the trial court to  


the more immediate legal errors in its stated reasons for rejecting the plea agreement, and  

      7      See McClain v. State, 519 P.2d 811, 813 (Alaska 1974); Erickson v. State, 950 P.2d  

580, 587 (Alaska App. 1987).  

      8      See Erickson, 950 P.2d at 587.  

                                                                              -  6 -                                                                       2579

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

to remand this case to the trial court for reconsideration of the plea agreement with the  


guidance provided here.  


           The legal errors that require us to vacate the superior court's rejection of  


           the plea agreement  


                     As we have explained, one of the judge's paramount reasons for rejecting  


the  plea  agreement  was  the  fact  that  Thomas  would  be  statutorily  eligible  to  be  


considered for discretionary parole under AS 33.16.090(b)(1) after serving one-third of  


his sentence.  According to the judge, the sentencing goal of community condemnation  


could not be achieved in this case if the normal statutory eligibility requirements for  


discretionary parole applied in this case.  Here is what the judge said about this matter:  


                               The Court: [T]he possibility of parole within 16 years  


                     of the [commission of the] crime[,] or 14 years from today, ...  


                     cheapens the crime.  ...  Alaska is a state in which domestic  


                     violence  leading  to  murder  is  an  extreme  concern.                             And  


                     Alaskans  demand  that  these  kinds  of  crimes  be  properly  


                     condemned.   And my assessment is that the possibility of  


                     parole before Mr. Thomas reaches the age at which he -  


                     most people typically age out [-] does not ... adequately  


                     express the community's condemnation for his crime.  


                     This rationale is substantially flawed.  When a judge sentences a criminal  


defendant and analyzes the need for a special restriction on the defendant's eligibility for  


discretionary parole, the judge must engage in a case-specific analysis of the facts and  


circumstances of the particular case and the particular defendant.  Here, however, the  


judge's analysis is grounded on the judge's generalized view of the appropriate sentence  


for an entire category of cases - domestic violence murder.  


                     The judge declared that no defendant in this category should be eligible to  


apply for discretionary parole until they "age out" - which, based on the context of the  


judge's remark, appears to be a reference to late middle age.  This approach to parole  


                                                               -  7 -                                                        2579

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

 eligibility is inconsistent with the parole statutes, and it is based on policy determinations                                                                                                                                                                           

 that are entrusted to the legislature, not the judiciary. As we explain in more detail in this                                                                                                                                                                                                                     

 decision, a judge has no authority to impose a more severe parole restriction on                                                                                                                                                                                                                                            a  

 defendant, untethered from the specifics of the defendant's case and based solely on the                                                                                                                                                                                                                             

judge's belief that the discretionary parole statutes are not sufficiently harsh for that                                                                                                                                                                                                           

 category of crime.                          

                                                  Moreover, there was no evidence in the record or presented at the hearings                                                                                                                                                                      

 about   when   defendants   typically   "age   out"   of   criminal   behavior   or   why   such   a  

 generalized   assertion   should   necessarily   apply   to   Thomas   personally.     Finally,   the  

judge's comment about Thomas's eligibility for discretionary parole "cheapen[ing] the                                                                                                                                                                                                                                 

 crime" strongly suggests that the judge was operating under incorrect legal assumptions                                                                                                                                                                                           

 about the procedures for granting discretionary parole and the circumstances under                                                                                                                                                                                                                       

 which discretionary parole is actually granted to defendants like Thomas.                                                                                                                                                                                                          

                                                  There are two different kinds of parole under Alaska law - mandatory                                                                                                                                                                   

 parole and discretionary parole.  Discretionary parole is, as the term suggests, entirely                                                                                      

 at the discretion of the Alaska Parole Board.                                                                                                                       9  



                                                  Under AS 33.16.090(b)(1), defendants such as Thomas who are sentenced  


 for murder become eligible to be considered for discretionary parole after they have  


 served  one-third  of  their  active  term of  imprisonment  or  the  applicable  mandatory  



 minimumsentence, whichever is greater.                                                                                                                       Becausethepleaagreement in Thomas's case  

             9            The Parole Board is a five-member board appointed by the governor, and subject to  

 confirmation by a majority of the legislature in joint session.  See AS 33.16.020(a).   Parole  


 Board members are generally persons with significant law enforcement and corrections  


 backgrounds.                                                  See,                     e.g. ,                     Alaska                              Dep't.                             of               Corrections,                                              Parole                             Board,  

                                                                                                                                                                                                                                                                                          (last visited Nov. 15, 2017).  

              10         AS 33.16.090(b)(1).  

                                                                                                                                                        -  8 -                                                                                                                                                2579

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

called for 50 years of active imprisonment (with 25 more years suspended), Thomas                                                                                                                                                                                                         

would become eligible to be considered for discretionary parole by the Alaska Parole                                                                                                                                                                                                             

Board after he served one-third of that 50-year sentence - that is, after he served 16                                                                                                                                                                                                                        

years and 8 months.                    

                                                But eligibility to be considered for discretionary parole does not mean that                                                                                                                                                                               

the defendant will be granted discretionary parole at that point in time, or at any later                                                                                                                                                                                                               

point   in   time.     Under   AS   33.16.100(a),   the   Parole   Board   is   authorized   to   grant   a  

defendant discretionary parole only if it affirmatively finds that (1) the prisoner will live                                                                                                                                                                                                              

and remain at liberty without violating any laws or conditions imposed by the board; (2)                                                                                                                                                                                                                     

the prisoner's rehabilitation and reintegration into society will be furthered by release on                                                                                                                                                                                                                    

parole; (3) the prisoner will not pose a threat of harm to the public if released on parole;                                                                                                                                                                                                   

and (4) release of the prisoner on parole would not diminish the seriousness of the                                                                                                                                                                                                                         




                                                Additionally, the victims of the crime (which includes family members of  


a victim who was murdered) have the right to be present at any Parole Board meeting in  



which discretionary parole of the defendant is considered.                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                            The victims also have the  



right to submit oral or written comments. 


                                                Because  release  on  discretionary  parole  is  so  difficult  to  obtain,  a  


sentencing judge is not permitted to consider a defendant's eligibility for discretionary  

             11         AS 33.16.100(a).  

             12         See AS 33.16.120(c); AS 33.16.900(15) (in this chapter, "victim" has the meaning  

given in AS 12.55.185); AS 12.55.185(19)(C).  

             13         AS 33.16.120(c).  

                                                                                                                                                    -  9 -                                                                                                                                            2579

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

parole as a factor that is likely to reduce the jail time that the defendant will actually                                       




                      In his initial comments, the judge acknowledged this governing law, noting  


that  he  was  "not  permitted  to  assume  what  the  parole  board  would  do."                                               But  the  


remainder of the judge's analysis indicates that this awareness was not meaningfully  


integrated into the judge's reasons for rejecting the proposed plea agreement.  


                      For example, the judge rejected the negotiated sentence, in part, because he  


believed that allowing  Thomas to be considered  for  discretionary parole under  the  


 statutory framework created by the legislature would "cheapen the crime."  But, as just  


explained, the Parole Board is statutorily required to consider the "seriousness of the  


crime" when it evaluates a defendant for possible release on discretionary parole, and the  


Parole Board is prohibited from releasing a defendant on discretionary parole if such a  



release will "diminish the seriousness of the crime."                                         The judge's comment about  


Thomas's eligibility for discretionaryparole "cheapen[ing] thecrime"thereforestrongly  


 suggests that the judge was either unaware of this statutory requirement or that the judge  


erroneously believed that the Parole Board would fail to meet its statutory duty to  


consider the seriousness of the crime when deciding whether to release Thomas on  



discretionary parole.                   The judge's comment also suggests that, despite the judge's  

      14   See  Jackson  v.  State,  616  P.2d  23,  24-25  (Alaska  1980)  (recognizing  that  "the  

assumption that an offender will be paroled on a particular date is, at best, speculative" and  

instructing sentencing judges to assume that the defendant will serve the entire term of his  


imprisonment without release on discretionary parole when determining the proper length  

of a defendant's sentence).  

      15   See AS 33.16.100(a)(4).  

      16   Cf. Newell v. State, 771 P.2d 873, 877 (Alaska App. 1989) (reversing sentencing  


judge's restriction of defendant's parole as unsupported by the necessary findings and as  

"appear[ing] to imply a distrust of the parole board's ability to do its job").  

                                                                  -  10 -                                                            2579

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

 claims to the contrary, the judge was viewing Thomas's initial parole eligibility date as                                                                                                        

 essentially equivalent to the date on which Thomas would be granted discretionary                                                                                      


                               Certainly, if the individual facts of a particular case warrant it, a sentencing                                                              

judge does have the authority under AS 12.55.115 to further restrict a defendant's                                                                                         

 eligibility for discretionary parole beyond the normal statutory default. Butas                                                                                               theAlaska   

 Supreme Court reaffirmed                                        in   Korkow v.                   State,   a judge's                     decision to                 restrict parole   

 eligibility in a particular case must be supported by "expressly articulated reasons" -                                                                                    


reasons that are case-specific, and that are backed by substantial evidence in the record.                                                                                                               


 The judge's decision must also be based on the Chaney criteria - with the recognition,  


 as the Alaska Supreme Court noted, that "the most relevant factors often will be public  



 safety and potential for rehabilitation." 


                               Here,  the  judge  failed  to  provide  any  case-specific  reasons  for  his  


 conclusion that a restriction on discretionary parole was required in this case.  Instead,  


 the judge improperly relied on a generalized assumption about criminal defendants and  


his apparent disagreement with the sentencing scheme governing Thomas's case.  In  


particular, the judge relied on what appears to be a generalized assumption about the age  


 in  which  criminal  defendants  purportedly  "age  out"  of  their  criminal  behavior.  


 Significantly, the judge did not provide any scientific, statistical, or other authority to  


 support his assertion about when offenders typically "age out."   Nor did the judge  


 articulate any reason why he believed that this generalized assertion would necessarily  


 apply to Thomas personally.  

        17      State v. Korkow, 314 P.3d 560, 565 (Alaska 2013).  

        18      Id.  

                                                                                             -  11 -                                                                                       2579

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

                                 We note that courts in other jurisdictions have been particularly critical of                                                                                                       

 sentencing   judges   using   these   types   of   generalized   assumptions,   untethered   to   the  

 specific facts of an individual case and an individual defendant. In                                                                                            People v. Fisher                       , for   

 example, the Michigan Court of Appeals reversed a sentence that was based on this type                                                                                                                 

 of speculative assumptions about when a defendant is "beyond the age of violence," and                                                                                                                   

 the court strongly criticized the sentencing judge's reliance on this rationale as "totally                                                                                                    

 inappropriate"and                            "antithetical"to thepurposeofindividualizedsentencing and uniform                                                                                 

 sentencing guidelines.                                19  


                                 Here, the judge provided no support for his generalized assumptions for  


 when criminal defendants typically "age out"; nor did he provide any reason for why he  


believed such generalized assumptions would apply to Thomasin particular. Instead, the  


judge's comments focused on the widespread occurrence of domestic violence in Alaska  


 and the need for community condemnation of murders that occur within that context.  


 The judge's comments also indicated that he believed no sentence for this type of crime  


 could adequately express the community's condemnation of a domestic violence murder  


 if that sentence allowed for the possibility of parole before the defendant "ages out."  


                                 Bydeclaringthat thesentencinggoalofcommunity condemnation required  


 a  special  discretionary  parole  restriction  for  any  young  or  middle-aged  defendant  


 convicted of murdering their spouse or domestic partner, the judge was essentially  


 voicing his disagreement with the legislative policy decisions underlying the provisions  


 of AS 33.16.090(b)(1). In other words, rather than making an individualized sentencing  


 determination about parole eligibility based on the facts of Thomas's specific case, the  


judgewas voicing his disapproval ofthesentencing framework enacted bythelegislature  


 for murder defendants in general.  This was improper.  

         19     People v. Fisher, 439 N.W.2d 343, 344 (Mich. App. 1989).  

                                                                                                  -  12 -                                                                                             2579

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

                            While a sentencing judge has the authority to impose a greater restriction                                                           

on parole eligibility based on the facts of a particular case, a judge has no authority to                                                                                        

impose enhanced parole restrictions on an entire category of defendants based on his                                                                                            

belief   that   the   parole   statutes   are   not   strict   enough   for   that   type   of   crime.     Such  

sentencing policy decisions are entrusted to the legislature.                                                               20  


                            The judge's error in this case is akin to the type of judicial error that can  


occur in the context of presumptive sentencing. As we have explained in previous cases,  


the   statutory   presumptive   ranges   of   imprisonment   represent   the   legislature's  


determination of the appropriate sentencing ranges for a typical offender committing a  



typical offense within that category of offenses.                                                         A sentencing judge has no authority  


to depart from those presumptive ranges unless the specific facts of the individual case  



and the individual offender warrant such a departure. 


                            Thus,asentencing judgemay exceedtheapplicablepresumptiverangeonly  


if a statutory aggravating factor is found and the judge determines that the  Chaney  



criteria cannot otherwise be met by a sentence within the presumptive range.                                                                                     Likewise,  


the judge may impose a sentence lower than the presumptive range only if a mitigating  



factor is found.                     (The judge may also refer the case to the three-judge sentencing panel  

       20     See Leuch v. State                   , 633 P.2d 1006, 1012-13 (Alaska 1981) ("[J]udgments as to the   

extent to which the community condemns a particular offense are more properly made in the                                                                       

legislative [arena] than by the judiciary.").  

       21     See Beltz v. State, 980 P.2d 474, 480 (Alaska App. 1999); see also Leuch, 633 P.2d  


at 1012-13.  

       22     Beltz, 980 P.2d at 480.  

       23     AS 12.55.155(c).  

       24     AS 12.55.155(d).  

                                                                                     -  13 -                                                                               2579

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

based on non-statutory mitigating factors or a finding that manifest injustice would result                                                    

fromimposition ofasentencewithinthepresumptiverangeon                                                      that particular offender.                25    



But judges have no authority  to  depart  from the presumptive range based on  their  


disagreement with the legislature's decision concerning the appropriate presumptive  


range for that offense.  


                       As we explained in Beltz v. State :  


                       A presumptive termcannot be "manifestly unjust" in general.  


                       It can only be "manifestly unjust" as applied to a particular  


                        defendant.  Before a sentencing judge can properly charac- 


                       terize a presumptive term as "manifestly unjust", the judge  


                       must   articulate   specific   circumstances   that   make   the  


                        defendant  significantly  different  from  a  typical  offender  


                       within that category or that make the defendant's conduct  



                        significantly different from a typical offense. 


                       This  same  principle  applies  to  the  present  case.                                       The  legislature  has  


established rules that govern parole eligibility for offenders convicted of murder.  A  


sentencing judge is not allowed to impose more severe parole restrictions on all murder  


defendants who kill their spouses or domestic partners based on the judge's belief that,  


as a general matter, Alaska's parole eligibility rules do not satisfy the sentencing goal of  


community condemnation for that type of crime or this group of offenders.  


                       Nor can a sentencing judge's decision to restrict parole eligibility be based  


on the judge's generalized view that criminal defendants will continue to commit crimes  


until they reach a certain age, or on the judge's unsupported belief that the Parole Board  

      25    AS 12.55.165; AS 12.55.175; see also State v. Seigle, 304 P.3d 627, 635-638 (Alaska  

App. 2017).  

      26    Beltz, 980 P.2d at 480.  

                                                                       -  14 -                                                                 2579

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

will fail to fulfillits statutory obligations to properly screen applications for discretionary  




                    For the reasons explained here, we GRANT Thomas's petition for review,  


and we VACATE the superior court's rejection of the proposed plea agreement.  We  


direct the superior court to reconsider this matter in light of what we have said in this  


opinion.  We do not retain jurisdiction of this case.  


                                                           -  15 -                                                      2579

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights