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

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

                                                                           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  



DAVID JOSEPH THOMAS,  

                                                                                                Court of Appeals No. A-12853  

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



                                      v.  

                                                                                                            O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                                   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,  

                                                                              

                         Judges.  



                         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                                                                                                                                                                                                                                                                                                                                                                             



custody.   



                                                                        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                                                                                                                                                                                           



                                                                                                                                                                                                                                                                                                                                                                                                                                                      1  

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-----------------------

                                                       2  

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  



prepared.  



                                                                                                                                   

                       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-----------------------

                                                                                                                                              5  

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-----------------------

                     7  

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                                                                     



                                     8  

                                                                                                                                                         

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  



                                                                                                                                                      10  

                                                                                                                                                                                                                                                                                                                  

 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,  

                                                                                                                                                                                                                                                                                                

 http://www.correct.state.ak.us/parole-board/members (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                                                                                                                                                                                                                         



                       11  

crime.                         



                                                                                                                                                                                                                                                                                                                 

                                                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  



                                                                                                                                                                                                                   12  

                                                                                                                                                                        

which discretionary parole of the defendant is considered.                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                            The victims also have the  



                                                                                                                                                     13  

                                                                                                             

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                                       



          14  

 serve.       



                                                                                                                                    

                      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  



                                                                                         15  

                                                                                                                                    

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  



                                  16  

                                                                                                                                 

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                                                                                      



parole.   



                               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" -                                                                                    



                                                                                                                                                                                                   17  

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  



                                                                                          18  

                                                       

 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  



                                                                                                    21  

                                                                                                                                                                   

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  



                                                                                                                22  

                                                                                          

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  



                                                                                                                                                            23  

                                                                                                                                                                  

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  



                                24  

                                                                                                                                                                           

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  



                                                                                                      26  

                                                                                         

                        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  

                                                                                                             



parole.  



          Conclusion  



                    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
  

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