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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Malloy (5/3/2002) sp-5560

State v. Malloy (5/3/2002) sp-5560

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

STATE OF ALASKA,              )    Supreme Court No. S-9754
                              )
               Petitioner,         )    Court of Appeals  No.  A-
6873
                              )    Superior Court No.
          v.                  )    3AN-95-9983 CR
                              )
MAUREEN ALICE MALLOY,         )    O P I N I O N
                              )
               Respondent.         )         [No. 5560 -  May  3,
2002]
                                                                )
     

          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  Appeal
          from   the  Superior  Court,  Third  Judicial
          District,   Anchorage,  Elaine  M.   Andrews,
          Judge.

          Appearances:    Nancy  R.  Simel,   Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Bruce  M. Botelho, Attorney General,  Juneau,
          for  Petitioner.  Dan S. Bair, Anchorage, for
          Respondent.

          Before:   Fabe,   Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          BRYNER, Justice.


I.   INTRODUCTION

          Under  AS  12.55.125(a)(3), a  defendant  convicted  of

first-degree murder must receive an unsuspended term  of  ninety-

nine years without eligibility for parole if the sentencing court

finds  by  clear  and  convincing  evidence  that  the  defendant

subjected  the  murder  victim to substantial  physical  torture.

Does   this  statute  impermissibly  subject  the  defendant   to

increased  punishment  for an aggravated  class  of  first-degree

murder that has not been proved beyond a reasonable doubt to  the

jury?   Because the statutes mandatory sentence falls within  the

range otherwise authorized for first-degree murder, we hold  that

AS  12.55.125(a)(3)  does not define a new, aggravated  class  of

first-degree  murder, but simply imposes a permissible  limit  on

the courts usual sentencing discretion.

II.  FACTS AND PROCEEDINGS

          A  jury  convicted Maureen Alice Malloy of first-degree

murder,   kidnapping,  and  tampering  with  evidence.1    Before

sentencing, the state gave notice that it would seek  a  sentence

under  AS  12.55.125(a)(3); this statute requires  the  court  to

impose  a maximum, unsuspended term of ninety-nine years when  it

finds by clear and convincing evidence that a defendant convicted

of  first-degree  murder  subjected  the  victim  to  substantial

physical torture.

          In response to the states notice, Malloy challenged the

statute as unconstitutional because it did not require the  state

to  charge  the  statutorily specified  aggravating  circumstance

substantial physical torture  as an element of the offense or  to

prove it beyond a reasonable doubt to the jury.

          Superior Court Judge Elaine M. Andrews rejected Malloys

constitutional  challenge  and,  after  finding  by   clear   and

convincing  evidence  that Malloy had  subjected  her  victim  to

substantial  physical  torture, imposed  the  mandatory  sentence

under   AS   12.55.125(a)(3):  a  term   of   ninety-nine   years

imprisonment  without  eligibility  for  discretionary   parole.2

Despite the mandatory nature of the sentence, Judge Andrews noted

that  she  would  have sentenced Malloy to the maximum  term  for

murder even if subparagraph .125(a)(3) had not made it mandatory;

Judge  Andrews  further  emphasized that,  in  her  view,  Malloy

deserved a life sentence without possibility of parole.

          Malloy appealed, and the court of appeals affirmed  her

convictions  and  sentences except for the  sentencing  provision

          that made Malloy ineligible for discretionary parole until she

completed  serving her term for first-degree murder.3  The  court

vacated  this parole restriction because it was imposed under  AS

12.55.125(a),   and  the  court  found  that  this   statute   is

unconstitutional.4

          The state petitioned for hearing, challenging the court

of  appealss decision declaring AS 12.55.125(a) unconstitutional.

We granted the petition to address that issue.5

III. DISCUSSION

     A.   Standard of Review

          Constitutional issues present questions of  law,  which

we  review de novo.6  In ruling on questions of law we adopt  the

rule  that is most persuasive in light of precedent, reason,  and

policy.7

     B.   Statutory Background

          Alaska   Statutes   12.55.125(a)(1)-(3)   lists   three

aggravating  circumstances  that  trigger  a  mandatory   maximum

sentence  for  first-degree murder.8  In imposing Malloys  first-

degree  murder sentence, the superior court found  by  clear  and

convincing  evidence that Malloy had subjected her murder  victim

to  substantial  physical  torture, the aggravating  circumstance

listed  in AS 12.55.125(a)(3), which attaches when the sentencing

court  finds by clear and convincing evidence that the  defendant

subjected  the  murder  victim to substantial  physical  torture.

Given  this finding, Judge Andrews sentenced Malloy to a  ninety-

nine-year term of imprisonment for murder, as required  under  AS

12.55.125(a)(3);    under   a   separate   statutory    provision

AS 33.16.090(b)  this mandatory sentence barred Malloy from being

eligible  for  discretionary parole: A prisoner  sentenced  to  a

mandatory  99-year  term  under AS 12.55.125(a)  .  .  .  is  not

eligible for discretionary parole during the entire term.9

          Like   the   mandatory   sentence   specified   by   AS

12.55.125(a)(1)-(3), the maximum discretionary sentence for first-

degree  murder   also set out in AS 12.55.125(a)  is  ninety-nine

          years;10 and under AS 12.55.115, a court sentencing a defendant

for   first-degree  murder  generally  has  authority   to   deny

eligibility  for discretionary parole, regardless of whether  the

court  finds one of the aggravating circumstances that trigger  a

mandatory maximum term under AS 12.55.125(a)(1)-(3).11

     C.   The Court of Appealss Decision

          Upon  considering the present case in  light  of  these

statutory  provisions, the court of appeals  found  that  Malloys

sentence   was   procedurally  flawed  because  AS   12.55.125(a)

improperly allowed the sentencing court to find the existence  of

the  aggravating  circumstances  that  subjected  Malloy  to   an

increased  mandatory maximum sentence.12  In context,  the  court

ruled,  the factors listed in AS 12.55.125(a)(1)-(3) amounted  to

elements  of   a  separate, more serious  class  of  first-degree

murder,  and  so  should have been formally  charged  and  proved

beyond  a  reasonable doubt to the jury.13           In  reaching

this  ruling, the court of appeals relied primarily on Donlun  v.

State,14  a  case decided by the Alaska Supreme Court in  1974.15

Donlun  involved  an  offender  convicted  under  Alaskas  former

burglary  statute,  which  authorized  three  different   maximum

burglary  sentences: ten years for an ordinary burglary,  fifteen

years  for a burglary committed at night, and twenty years for  a

burglary  in an occupied dwelling.16  Although Donluns indictment

failed  to allege either of the statutorily specified aggravating

circumstances,  the  evidence  at trial  indicated  that  he  had

committed  his  offense in an occupied dwelling  at  night.   The

trial court thus explicitly based Donluns sentence on the premise

that he was subject to a maximum term of twenty years.17

          Donlun   appealed,  challenging  the  superior   courts

sentencing  premise.  This court reversed, holding that  where  a

criminal  statute  provides  for graded  or  enhanced  ranges  of

punishments  for aggravated instances of the proscribed  offense,

an  indictment charging the offense must specify the  aggravating

facts  before the defendant can be exposed to an increased  range

          of punishment.18  We grounded this conclusion on general

principles of fairness and notice, without saying whether it  was

constitutionally based:  We believe that if a defendant is to  be

afforded  a fair opportunity to defend against a burglary  charge

involving  aggravated circumstances, such circumstances  must  be

set forth in the indictment . . . and proven at trial.19

          In  considering  Malloys appeal, the court  of  appeals

read  Donlun  as  stating  a rule of  law  based  on  the  Alaska

Constitution.20  The court construed Donlun to mean

          that   when  a  statute  provides  a  greater
          maximum   penalty  for  a  crime   based   on
          specified   aggravating   factors,    Alaskas
          guarantees of due process (Article I, Section
          7)  and  of trial by jury (Article I, Section
          11)  [and  also,  when a felony  is  charged,
          Alaskas  guarantee of grand  jury  indictment
          (Article  I, Section 8)] require us to  treat
          the  statute  as creating separate  offenses,
          and  to  treat  the  aggravating  factors  as
          elements  of  the  aggravated  form  of   the
          offense.   The defendant will not be  subject
          to  the  greater maximum penalty  unless  the
          charging  document  specifies  the  pertinent
          aggravating  factors  and  the  State  proves
          these aggravating factors beyond a reasonable
          doubt at the defendants trial.[21]
          
          Applying this interpretation of Donlun to the  case  at

hand,   the  court  of  appeals  concluded  that  Malloys  parole

restriction  was invalid because Malloy had not been specifically

charged and convicted for inflicting substantial physical torture

on her murder victim.  The court expressly recognized that Alaska

law   ordinarily  empowers  sentencing  courts  to   restrict   a

defendants normal eligibility for parole  or deny it altogether.22

But  it  nonetheless reasoned that a mandatory parole restriction

imposed  under AS 12.55.125(a)(1)-(3) represents a  new,  harsher

penalty23 than the usual maximum penalty for first-degree murder,

since the courts earlier case law had defined maximum penalty  to

mean the [ninety-nine-year] maximum term of imprisonment, whether

or   not   the  sentencing  judge  restricts  or  denies   parole

eligibility.24

          After   emphasizing  that  AS  12.55.125(a)  not   only

requires  sentencing  judges  to  impose  the  maximum  term   of

imprisonment that might have been imposed under prior law, but  .

. . also effectively requires sentencing judges to exercise their

utmost  power . . . to restrict the defendants parole, the  court

of  appeals  found  that  the challenged  statute  establishes  a

separate maximum penalty for certain offenders convicted of first-

degree murder, a penalty that is harsher than the maximum penalty

specified for other offenders convicted of this crime.25  Viewing

this  finding  in  light of Donlun, the court  declared  that  AS

12.55.125(a)  violated  Malloys  constitutional  rights   to   an

indictment,  a  jury  trial,  and a finding  of  guilt  beyond  a

reasonable  doubt on the issue of substantial physical torture.26

The  court thus vacated Malloys mandatory parole restriction  and

remanded the case for resentencing.27

     D.   Analysis

          When  the  court  of  appeals heard  Malloys  case  and

reached  its decision, federal constitutional case law  on  point

was  unsettled  and  offered no clear resolution  as  to  whether

Malloy  had a right to be formally charged with and convicted  of

aggravating   circumstances  such  as  those  specified   in   AS

12.55.125(a)(3)  before being exposed to mandatory  maximum  term

for first-degree murder.28  Because of this uncertainty, the court

of  appeals  chose to view Donlun as a decision grounded  on  the

Alaska Constitution; the court thus extended to Malloy the  state

constitutional protections that it found implicit in Donlun.29

          Less than two months after the court of appeals decided

Malloy,  the  United States Supreme Court ended the federal  laws

lingering  uncertainty by deciding Apprendi v.  New  Jersey,30  a

landmark case interpreting the Fourteenth Amendments Due  Process

Clause  to incorporate procedural protections that closely mirror

the   protections  that  Malloy  found  embedded  in  the  Alaska

Constitution.

          Specifically,  Apprendi holds that,  [o]ther  than  the

          fact of a prior conviction, any fact that increases the penalty

for  a  crime  beyond the prescribed statutory  maximum  must  be

submitted  to  the jury, and proved beyond a reasonable  doubt.31

Conversely  put,  Apprendi forbids treating as a mere  sentencing

factor   any  aggravating  circumstance  (apart  from   a   prior

conviction) that must exist in order to subject the defendant  to

a  legally prescribed punishment32  or in other words,  any  fact

which is essential to the punishment to be inflicted.33

          This  holding,  directly binding on  states  under  the

Fourteenth  Amendment,  lays to rest  any  controversy  over  the

accuracy of the court of appealss view that Donlun is grounded on

constitutional principles.  The court of appealss explanation  of

Donluns state constitutional roots accords with Apprendi.  And as

the  state  now recognizes, Donlun accurately presaged  Apprendis

holding that aggravating facts must be charged and proved  beyond

a  reasonable doubt to the jury when their existence would  allow

or  require the court to impose a sentence exceeding the  maximum

otherwise authorized.

          But   Apprendi  does  not  lay  to  rest  the  narrower

controversy  presented  here:  whether  the  court   of   appeals

correctly  applied Donlun to Malloys situation  that is,  whether

the  court  of  appeals properly concluded  that  Malloys  murder

sentence    a  mandatory  maximum  sentence  imposed   under   AS

12.55.125(a)(3)    actually   exceeds   the   maximum   otherwise

authorized.

          The  state  correctly  points out  that,  even  without

relying  on  the  aggravating circumstances spelled  out  in  the

mandatory   sentencing  provision,  Judge  Andrews   could   have

sentenced Malloy to exactly the same term that she received under

AS  12.55.125(a)(3)   ninety-nine years  without  possibility  of

parole.  Because Judge Andrews had discretion to impose the  same

sentence in any event, the state asserts that AS 12.55.125(a)(1)-

(3)  cannot plausibly be construed to mandate any increase in the

potential  maximum sentence that might otherwise  be  authorized.

          Therefore, the state reasons, neither Donlun nor Apprendi

precludes  treating  the  aggravating  circumstances  listed   in

paragraphs  .125(a)(1)-(3) as ordinary  sentencing  factors   and

similarly,  neither case justifies characterizing  the  mandatory

sentencing  statute as a substantive law defining  a  new  crime:

aggravated first-degree murder.  We agree.

          As the court of appeals expressly recognized, the usual

maximum sentence for first-degree murder is ninety-nine years  in

prison,  and  in  all  such  cases  sentencing  judges  have  the

authority  under  AS  12.55.115 to restrict a  defendants  normal

eligibility  for  parole;  the court nonetheless  ruled  that  AS

12.55.125(a) establishes a separate maximum penalty . . . that is

harsher  than  the maximum penalty specified for other  offenders

convicted of [first-degree murder].34  The court gave two reasons

for  holding that AS 12.55.125(a)(3) exposed Malloy to a  harsher

maximum penalty even though Judge Andrews could have imposed  the

same   sentence   without  invoking  the   mandatory   sentencing

provision:  first,  AS 12.55.125(a) not only  limits  the  courts

discretion  but  completely abolishes the range of  sentences  in

favor of a fixed 99-year sentence;35 second, the mandatory parole

restriction  that  attaches  to a mandatory  term  imposed  under

AS  12.55.125(a) results in a sentence exceeding  the  definition

that  the  court of appeals usually applies to the  term  maximum

sentence.  In the courts words:

               True,   sentencing   judges   have   the
          authority  under AS 12.55.115 to  restrict  a
          defendants normal eligibility for parole   or
          deny  it  altogether.  But we have previously
          held  that  a  defendant receives  a  maximum
          sentence  if  he or she is sentenced  to  the
          maximum term of imprisonment, whether or  not
          the  sentencing  judge  restricts  or  denies
          parole  eligibility.  That is, the  mandatory
          sentencing   provision  in  the  first-degree
          murder  statute not only requires  sentencing
          judges   to  impose  the  maximum   term   of
          imprisonment  that  might have  been  imposed
          under  prior  law,  but it  also  effectively
          requires sentencing judges to exercise  their
          utmost  power under AS 12.55.115 to  restrict
               the defendants parole.[36]
          
But  neither  of  these reasons supports the conclusion  that  AS

12.55.125(a)  increases  the usual maximum  sentence  for  first-

degree  murder in the manner contemplated by Donlun and  Apprendi

that  is,  by  empowering the court to impose a sentence  harsher

than the harshest sentence otherwise authorized.

          The   courts   first  reason   that   AS   12.55.125(a)

eliminates  all  sentencing discretion and requires  the  maximum

available  sentence   bears  no  relation  to  the  core  concern

underlying  Donlun and Apprendi: protecting a  defendant  from  a

higher  sentencing range than otherwise possible.  In  addressing

this  concern  Donlun and Apprendi recognize  that  an  increased

sentence  resulting  from  a  finding  of  statutory  aggravating

circumstances  is not a harsher maximum sentence  than  otherwise

authorized unless it falls outside the outer limits of the  range

of sentences that the court could otherwise impose.37

          To  be  sure,  any  mandatory  sentence  that  entirely

eliminates   a  judges  sentencing  discretion  may   result   in

occasional  cases where extraordinary circumstances might  appear

to  preclude  imposing the mandated sentence without jeopardizing

the  courts  ability to promote Alaskas constitutional sentencing

goal  of reforming the offender in the particular case at hand.38

But  because  this  kind  of constitutional  friction  implicates

concerns  relating  to the substantive fairness  of  a  mandatory

sentence in particular factual settings, it has little to do with

the  concerns  at issue here, which more narrowly relate  to  the

procedural  fairness  of expos[ing] the defendant  to  a  greater

punishment  than  that authorized by the jurys guilty  verdict.39

And  as  Donlun emphasized, where a statute proscribes  a  single

offense and commits a single range of sentences to the discretion

of  the  sentencing court, aggravating facts warranting sentences

in  the upper spectrum of the range need not be set forth in  the

complaint or indictment.40

          Furthermore,   a  mere  possibility  of  constitutional

          friction in occasional, extraordinary cases does not justify

declaring  a  statute entirely invalid.  And  in  any  event,  no

realistic danger of any such friction exists in the present case,

for  Judge Andrewss sentencing comments make it abundantly  clear

that  she  firmly  believed  Malloys  mandatory  sentence  to  be

justified and likely would have imposed exactly the same sentence

even if AS 12.55.125(a)(3) had not made it mandatory.  Hence, the

fact  that  AS 12.55.125(a) left Judge Andrews no choice  but  to

impose  the  maximum sentence lends no support to  the  court  of

appealss conclusion that the statute exposed Malloy to a sentence

harsher  than  the maximum penalty specified for other  offenders

convicted of this crime.41

          The court of appealss second reason for concluding that

AS  12.55.125(a) exposed Malloy to an increased maximum  sentence

was  that the court had previously held that a defendant receives

a  maximum sentence if he or she is sentenced to the maximum term

of  imprisonment,  whether  or not  the  sentencing  court  judge

restricts  or  denies  parole eligibility.42   But  the  previous

holding referred to in this passage  Capwell v. State  stands for

the   narrow  proposition  that  parole  eligibility  should   be

considered  irrelevant  for purposes  of  the  rule  requiring  a

sentencing judge to make an express worst-offender finding before

imposing a maximum sentence.43  Nothing in Capwell suggests  that

the  rule  in  Donlun should require courts to deem a non-parole-

restricted  maximum  term  of  imprisonment  to  be  the  maximum

sentence  normally authorized for first-degree murder.  Moreover,

if  Capwell did suggest this conclusion, then logically  Capwells

definition of maximum sentence would apply to both parts  of  the

Donlun  analysis:  For if parole is transparent  when  we  decide

what    maximum    sentence   attaches   for    murder    without

AS 12.55.125(a)(1)-(3), why is it not just as transparent when we

decide  if  a  mandatory maximum sentence under that  statute  is

harsher?44

            In  reality, of course, a parole-restricted  term  of

          ninety-nine years is undeniably harsher than a ninety-nine-year

term  that  does  not  restrict  a  defendants  eligibility   for

discretionary  parole.  To apply Capwells  narrow  definition  of

maximum sentence in the Donlun context would thus place form over

substance.   Both Donlun and Apprendi preclude this result:  they

require  us  to compare the harshest sentence actually  available

before    a   finding   of   aggravating   circumstances    under

AS 12.55.125(a) with the actual harshness of the sentence that is

mandated by such a finding: [T]he relevant inquiry is one not  of

form,  but  of  effect   does  the required  finding  expose  the

defendant  to  a greater punishment than that authorized  by  the

jurys guilty verdict?45

          Because  the  actual  effect  of  a  mandatory   parole

restriction imposed under AS 33.16.090(b) is identical to that of

a  parole  restriction  imposed at the sentencing  courts  option

under  AS  12.55.115,  and  because the optional  restriction  is

independently  authorized, it is immaterial  that  Capwell  would

call  a ninety-nine-year non-parole-restricted murder sentence  a

maximum sentence in a different sentencing context.

          We  hold,  then, that the court of appeals  incorrectly

applied  Donlun  to Malloys situation.  The mandatory  sentencing

provisions of AS 12.55.125(a)(1)-(3) did not subject Malloy to  a

greater maximum penalty than was otherwise authorized.

          Malloy nonetheless urges us to expand Donlun beyond its

literal terms and beyond its meaning as interpreted by the  court

of appeals.  Citing Oregon and Hawaii case law,46 Malloy advocates

a state constitutional rule that would require the prosecution to

charge  and  submit to the jury any aggravating  factor  that  is

intrinsic  to the commission of the charged offense and  has  the

effect of narrowing the sentencing courts range of discretion  in

any  way that disfavors the defendant.  Under this approach,  for

example,  Oregon has construed its state constitution to prohibit

a mandatory minimum sentence triggered by intrinsic circumstances

not specifically charged and addressed by the jury.47

          But  this  approach has been considered by  the  United

States Supreme Court and rejected under the federal constitution.48

It  also  conflicts with Alaska cases that deal with minimum  and

presumptive sentencing.49  The approach finds no support  in  the

text   or  history  of  the  Alaska  Constitution.   And  it   is

inconsistent  with  Donluns statement reaffirming  that  where  a

statute proscribes a single offense and commits a single range of

sentences  to the discretion of the sentencing court, aggravating

facts  warranting sentences in the upper spectrum  of  the  range

need not be set forth in the complaint or indictment.50  For  all

these  reasons,  we decline to expand the Donlun rule  under  the

Alaska   Constitution  to  prohibit  presumptive   or   mandatory

sentencing factors as long as those factors simply guide or limit

a  sentencing  courts  discretion within the  existing  statutory

sentencing range for the offense at issue.

IV.  CONCLUSION

          Because  AS  12.55.125(a) does not  violate  Donlun  or

Apprendi,  we  VACATE the court of appealss order remanding  this

case  to  the  superior  court for resentencing  and  AFFIRM  the

superior courts sentence as originally imposed.

_______________________________
     1      The   underlying  facts  of  Malloys   offenses   are
exceptionally  brutal  but  are  not  relevant  here;  they   are
summarized  in  Malloy v. State, 1 P.3d 1266, 1269  (Alaska  App.
2000).

     2    Judge Andrews also sentenced Malloy to a term of ninety-
nine  years  for  kidnapping,  made  sixty  years  of  that  term
consecutive to the term for murder, and imposed a concurrent five-
year  sentence  for  tampering with evidence.  Malloys  composite
term thus totaled 159 years imprisonment.

     3    Malloy, 1 P.3d at 1290.

     4    Id. at 1288, 1290.

     5     Malloy v. State, 1 P.3d 1266 (Alaska App. 2000),  pet.
for  hrg.  granted,  File No. S-9754 (Alaska, October  3,  2000).
Malloy  also  petitioned for hearing, challenging  the  court  of
appealss  decision  to affirm her conviction and  total  term  of
imprisonment.  We denied Malloys petition for hearing.

     6     Keane  v.  Local Boundary Commn, 893 P.2d  1239,  1241
(Alaska  1995); Langdon v. Champion, 752 P.2d 999,  1001  (Alaska
1988).

     7    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     8    AS 12.55.125(a)(1)-(3) provides:

               (a)  A defendant convicted of murder  in
          the  first  degree shall be  sentenced  to  a
          definite term of imprisonment of at least  20
          years   but  not  more  than  99  years.    A
          defendant  convicted of murder in  the  first
          degree shall be sentenced to a mandatory term
          of imprisonment of 99 years when
          
               (1)   the defendant is convicted of  the
          murder  of  a uniformed or otherwise  clearly
          identified  peace officer, fire  fighter,  or
          correctional employee who was engaged in  the
          performance of official duties at the time of
          the murder; [or]
          
               (2)   the  defendant has been previously
          convicted of
          
               (A)  murder in the first degree under AS
          11.41.100   or   former   AS   11.15.010   or
          11.15.020;
          
               (B)   murder in the second degree  under
          AS 11.41.110 or former AS 11.15.030;  or
          


               (C)   homicide under the laws of another
          jurisdiction  when the offense of  which  the
          defendant  was  convicted  contains  elements
          similar  to  first  degree  murder  under  AS
          11.41.100  or second degree murder  under  AS
          11.41.110; [or]
          
               (3)    the  court  finds  by  clear  and
          convincing   evidence  that   the   defendant
          subjected  the  murder victim to  substantial
          physical torture[.]
          
     9    See Malloy, 1 P.3d at 1281 (quoting AS 33.16.090(b)).

     10    See above, footnote 8.

     11     AS  12.55.115 provides: The court may, as part  of  a
sentence of imprisonment, further restrict the eligibility  of  a
prisoner  for discretionary parole for a term greater  than  that
required under AS 33.16.090 and 33.16.100.

     12    Malloy, 1 P.3d at 1285, 1288-89.

     13    Id. at 1288-89.

     14    527 P.2d 472 (Alaska 1974).

     15    Malloy, 1 P.3d at 1285, 1288-89.

     16     Donlun,   527  P.2d at 473-74 (describing  former  AS
11.20.080).

     17    Id. at 473.

     18    Id.

     19    Id. at 474.

     20    Malloy, 1 P.3d at 1287-89.

     21    Id. at 1288.

     22    Id. at 1285 (citing AS 12.55.115).

     23    Id. at 1285.

     24     Id. (footnote omitted) (citing Capwell v. State,  823
P.2d 1250, 1256 (Alaska App. 1991)).

     25    Id. at 1285.

     26    Id. at 1288, 1290.

     27     The  court of appeals initially ordered the  superior
court  to  enter an amended judgment with the parole  restriction
deleted.   Malloy, 1 P.3d at 1290.  But after the state  filed  a
petition for rehearing pointing out that the sentencing judge had
strongly  suggested that she would have imposed the  same  parole
restriction as a matter of discretion under AS 12.55.115 even  if
AS 12.55.125(a)(3) had not applied, the court amended its mandate
to  allow the superior court to exercise its discretion on remand
with respect to Malloys eligibility for parole.  Malloy v. State,
No. A-6873 (Alaska App., June 16, 2000) (order on rehearing).

     28    Malloy, 1 P.3d at 1285-86 (discussing the United States
Supreme  Courts  then  two most recent decisions  on  the  issue,
Almendarez-Torres  v.  United States, 523 U.S.  224  (1998),  and
Jones v. United States, 526 U.S. 227 (1999)).

     29    See id. at 1287-89.

     30    530 U.S. 466 (2000).

     31    Id. at 490.

     32    Id. at 499 (Scalia, Justice, concurring).

     33    Id. at 511 (Thomas, Justice, concurring) (quoting 1 J.
Bishop,  Commentaries on Criminal Law  961, pp. 564-65  (5th  ed.
1872)).

     34    Malloy, 1 P.3d at 1285.

     35    Id.

     36     Id. (footnote omitted) (citing Capwell v. State,  823
P.2d 1250, 1256 (Alaska App. 1991)).

     37    See Apprendi, 530 U.S. at 482; Donlun, 527 P.2d at 474.

     38    See Alaska Const. art. I,  12:

               Excessive  bail shall not  be  required,
          nor  excessive fines imposed, nor  cruel  and
          unusual   punishments  inflicted.    Criminal
          administration  shall  be  based   upon   the
          following:   the  need  for  protecting   the
          public,   community   condemnation   of   the
          offender,  the rights of victims  of  crimes,
          restitution  from  the  offender,   and   the
          principle of reformation.
          
Cf.  Dancer  v. State, 715 P.2d 1174, 1177-79 (Alaska App.  1986)
(discussing   the  three-judge  sentencing  panels   safety-valve
function  in  the context of a due process challenge  to  Alaskas
presumptive sentencing system).

     39    Apprendi, 530 U.S. at 494.

     40    Donlun, 527 P.2d at 474; cf. McMillan v. Pennsylvania,
477  U.S.  79  (1986) (upholding Pennsylvanias Mandatory  Minimum
Sentencing Act).

     41    Malloy, 1 P.3d at 1285.

     42    Id. (footnote omitted).

     43     823  P.2d  1250, 1256 (Alaska App.  1991),  cited  in
Malloy, 1 P.3d at 1285 n.47.

     44      Alternatively  stated,  if  AS  12.55.115s   general
conferral of power to deny parole eligibility in all first-degree
murder  cases does not authorize a maximum sentence  exceeding  a
non-parole-restricted term of ninety-nine years, then, similarly,
AS  33.16.090(b)s  specific  directive  to  restrict  parole  for
sentences imposed under AS 12.55.125(a) seemingly would not cause
those  mandatory  sentences to exceed  the  otherwise  authorized
maximum sentence.

     45    Apprendi, 530 U.S. at 494.

     46     See  State  v. Janto, 986 P.2d 306, 320 (Haw.  1999);
State  v.  Tafoya, 982 P.2d 890 (Haw. 1999); State v. Wedge,  652
P.2d 773 (Or. 1982).

     47     Wedge, 652 P.2d at 775, 778; cf. Tafoya, 982 P.2d  at
902  (stating  that  for  constitutional purposes,  there  is  no
distinction  between  extended  and  mandatory  minimum  enhanced
sentencing.   Both  constrain the discretion  of  the  sentencing
judge and fix the term of incarceration imposed . . . as a result
of the conviction.).

     48     Apprendi,  530  U.S. at 482 (when  imposing  judgment
within  the  sentencing range prescribed by statute,  courts  may
consider sentencing factors relating both to the offense and  the
offender); see also McMillan v. Pennsylvania, 477 U.S. 79  (1986)
(approving mandatory minimum sentencing law).

     49     Notably, the court of appeals has consistently upheld
both presumptive sentencing and mandatory sentencing statutes  as
constitutionally  valid.  See, e.g.,  Abdulbaqui  v.  State,  728
P.2d  1211  (Alaska  App. 1986) (affirming  enhanced  presumptive
sentence as constitutional); Dancer v. State, 715 P.2d 1174, 1177-
79  (Alaska  App. 1986) (upholding Alaskas presumptive sentencing
statutes against a due process challenge); and Huf v. State,  675
P.2d  268,  273  (Alaska  App. 1984)  (holding  that  a  six-year
mandatory  minimum sentence merely limited the judges  discretion
within  the penalty range of up to twenty years, when  the  trial
court found that the defendant possessed or used a firearm during
the  commission of a felony).  More notably still, in  Abdulbaqui
the  court  disapprovingly commented on the approach  adopted  in
Wedge,  observing  that the Oregon decision conflicted  with  the
court  of  appealss ruling in Huf v. State.  See Abdulbaqui,  728
P.2d at 1220.

     50    Donlun, 527 P.2d at 474.