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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Yako W. Collins v. State of Alaska (5/9/2025) sp-7768
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, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
YAKO W. COLLINS, )
) Supreme Court No. S-18175
Petitioner, )
) Court of Appeals No. A-12816
v. )
) Superior Court No. 3PA-08-00803 CR
STATE OF ALASKA, )
) O P I N I O N
Respondent. )
) No. 7768 - May 9, 2025
Petition for Hearing from the Court of Appeals of the State
of Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer, Jonathan A.
Woodman, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender,
and Samantha Cherot, Public Defender, Anchorage, for
Petitioner. Eric A. Ringsmuth, Assistant Attorney General,
Anchorage, and Treg Taylor, Attorney General, Juneau, for
Respondent.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
MAASSEN, Chief Justice.
INTRODUCTION
This is a sentencing appeal. Defendant Yako Collins was convicted of
first-degree sexual assault and sentenced within the presumptive range. The superior
court denied Collins's request for referral to the three-judge sentencing panel pursuant
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to AS 12.55.165(a), and Collins appealed. In Collins I the court of appeals identified
two non-statutory mitigating factors that could entitle Collins to referral to the three-
judge sentencing panel .1 The court of appeals remanded to the superior court for
2
consideration of those factors in deciding whether to make the referral.
We granted the State's petition for hearing. In 2013, while the matter was
pending before us, the legislature amended the relevant statutes,3 rejecting the newly-
identified Collins I non-statutory mitigating factors as standalone bases for referral to
the three-judge sentencing panel . We then dismissed the State's petition as
improvidently granted.
The superior court, applying the 2013 amended statutes to Collins,
affirmed his original sentence; Collins again appealed. In Collins II the court of appeals
relied on the doctrine of clarifying legislation to conclude that the 2013 legislative
amendments "did not alter Alaska sentencing law, but instead clarified it," and the
amended statutes could therefore be applied to Collins without violating the
constitutional prohibition against ex post facto laws.4 The court of appeals concluded
that although Collins could seek referral to the three-judge sentencing panel under the
sentencing statutes' "manifestly unjust" catch-all, he could not seek referral based
solely on the factors identified in Collins I.5 Collins petitioned for hearing.
We granted the petition and asked the parties to address two questions.
First, "did the court of appeals correctly determine that [the 2013 legislative
amendments] did not change, but merely clarified, prior law?" And second, "does a
1 Collins v. State (Collins I), 287 P.3d 791, 797 (Alaska App. 2012).
2 Id.
3 Ch. 43, §§ 1, 22-23, 46, SLA 2013.
4 Collins v. State (Collins II), 494 P.3d 60, 73 (Alaska App. 2021).
5 Id.
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judicial determination that legislation affecting the criminal law clarifies, rather than
changes, the prior law mean that the legislation does not violate the ex post facto
clause?"
We answer the second question in the negative, relying on two
constitutional principles: the separation of powers and the prohibition on ex post facto
laws. Regardless of whether legislation was intended to "clarify" the intent of an earlier
legislature, the new law - if substantive - cannot be applied retroactively if in the
meantime this court or the court of appeals has given the earlier law a different
interpretation. But because the court of appeals in Collins II did not address the State's
argument that the 2013 legislation was merely procedural and could be applied to
Collins without violating his substantive rights, we reverse Collins II and remand to the
court of appeals for its consideration of that argument.
FACTS AND PROCEEDINGS
A. The Statutory Context At The Time Of Collins's Original Sentencing
In 2006 the Alaska Legislature amended the sentencing guidelines for
many criminal sex offenses.6 Yako Collins's crime - first degree sexual assault by a
first-time felony offender against a person over the age of 13 - was committed in 2008;
he was therefore subject to a presumptive sentencing range that had been increased from
7
8 to 12 years to 20 to 30 years.
The statutes allow variations from the presumptive ranges, but any
variance must "be based on the totality of the aggravating and mitigating factors set out
in [AS 12.55.155(c) and (d)]."8 In those two subsections the legislature listed 37
"factors in aggravation" that, if proven, "may allow imposition of a sentence above the
6 Ch. 14, § 4, SLA 2006.
7 AS 12.55.125(i)(1)(A)(ii); see also ch. 14, § 4, SLA 2006.
8 AS 12.55.155(b).
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[statutory] presumptive range" and 21 "factors in mitigation" that, if proven, "may
allow imposition of a sentence below the [statutory] presumptive range."9 But "[w]hen
an offense is subject to a presumptive range of imprisonment and no statutory mitigating
factor has been proven, a sentencing judge has no discretion to impose a sentence below
10
the low end of the presumptive range."
The presumptive sentencing ranges do come with an escape valve;
AS 12.55.165(a) requires referral to a three-judge sentencing panel if "the [sentencing]
court finds by clear and convincing evidence that manifest injustice would result from
failure to consider relevant aggravating or mitigating factors not specifically included
in AS 12.55.155 or from imposition of a sentence within the presumptive range,
whether or not adjusted for aggravating or mitigating factors."11 On referral, the three-
judge panel reviews "all pertinent files, records, and transcripts, including the findings
and conclusions of the judge who originally heard the matter," and if it agrees with the
referring judge's "manifest injustice" finding, it is required to sentence the defendant
according to a different and more lenient set of statutory guidelines.12 "If the panel
does not find that manifest injustice would result, it shall remand the case to the
sentencing court, with a written statement of its findings and conclusions, for sentencing
13
under AS 12.55.125."
9 AS 12.55.155(a), (c), (d).
10 Collins I, 287 P.3d 791, 794 (Alaska App. 2012).
11 AS 12.55.165(a).
12 AS 12.55.175(b) (permitting sentence below presumptive range); but see
AS 12.55.175(c) ("The three-judge panel may in the interest of justice sentence the
defendant to any definite term of imprisonment up to the maximum term provided for
the offense or to any sentence authorized under AS 12.55.015.").
13 AS 12.55.175(b).
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B. The 2009 Superior Court Conviction And Sentencing
In 2009 a jury convicted Collins of sexually assaulting his then-
girlfriend's 16-year-old sister.14 He was sentenced to 25 years with five years
suspended and 15 years of probation; his sentence of 20 years to serve was at the low
15
end of the presumptive range established for his crime by the 2006 legislation.
Collins asked the court to refer his case to the three-judge sentencing
panel. He argued that a sentence in the presumptive range would be manifestly unjust
given that he had no significant criminal history, was a person of "remarkably good
character," and had an "extraordinary" potential for rehabilitation. The sentencing
judge denied Collins' s motion, concluding that his case was not exceptional enough to
16
justify referral to the three -judge panel.
C. The Court of Appeals' Decision In Collins I
Collins appealed his conviction and sentence.17 The court of appeals
affirmed the conviction but not the sentence, which it remanded to the superior court
for reevaluation of whether referral to the three-judge sentencing panel was
warranted.18 The court observed that the legislative history of the 2006 sentencing
statute "makes clear that the current sentencing ranges are based on legislative findings
that the typical sex offender is a repeat offender with very poor prospects for
rehabilitation."19 In light of this legislative history, the court "conclude[d] that
defendants convicted of sex offenses - particularly, young defendants with no
14 The crime is described in more detail in Collins I, 287 P.3d at 792-93.
15 Id. at 793; see also Ch. 14, § 4, SLA 2006.
16 Collins I, 287 P.3d at 795.
17 Id. at 792.
18 Id. at 797.
19 Id. at 795 (citing 2006 S. Journal 2207-14).
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significant criminal record - should be able to obtain referrals to the three-judge
20
sentencing panel if they can show that these assumptions do not apply to them."
Defendants who carry that burden by clear and convincing evidence are entitled to have
their cases referred to the three-judge panel for sentencing outside the presumptive
ranges "because the legislature designed the presumptive ranges for sex offenders with
significantly different characteristics."21 The three-judge panel can then decide
"whether, given all the circumstances of the case, it would be manifestly unjust to
sentence the defendant to a term of imprisonment within the applicable presumptive
22
range."
Then-Judge Bolger dissented, contending that the court had established
new mitigating factors purportedly "based on the legislative history of the 2006
sentencing legislation" but which "are not supported by this legislative history."23 As
for the first factor - whether the defendant has a history of unprosecuted offenses -
Judge Bolger reasoned that "the problem with requiring proof of unreported offenses is
that the offenses cannot be documented: The legislature found that only sixteen percent
of victims report a sexual assault and that only twenty-seven percent of reported sex
crimes result in an arrest."24 Therefore, and because "[t]hese unreported and
unprosecuted offenses will be unavailable to the sentencing judge[,] we should not
make this routine circumstance the basis for a mitigating factor."25 Judge Bolger further
20 Id. at 796.
21 Id. at 797.
22 Id.
23 Id. (Bolger, J., dissenting).
24 Id. at 798 (citations omitted).
25 Id.
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observed that the existing statutory scheme,26 as well as case law,27 already relied on
"aggravating factors for a prior history of aggravated assaultive behavior or a prior
history of similar offenses."28 Thus, he reasoned, "[i]f the prosecution cannot prove
these aggravating factors, then the sentence properly belongs within the presumptive
29
range; the absence of these factors does not make the case atypically mitigated."
As for the second factor - whether the defendant has normal prospects
for rehabilitation - Judge Bolger disagreed with the court's reasoning "that it would
be manifestly unjust to sentence a sex offender with normal prospects for rehabilitation
to a sentence within the normal presumptive sentencing range."30 Rather, while
observing that "a sex offender who poses a moderate risk of recidivism may still pose
an unacceptable danger to the community," Judge Bolger concluded that "[w]e should
maintain the same standard for a sex offender that we have previously established for
other defendants, requiring the defendant to show particularly favorable prospects for
31
rehabilitation in order to establish a non-statutory mitigating factor."
In February 2013 we granted the State's petition for hearing.
26 Id. (first citing AS 12.55.155(c)(8); and then citing AS 12.55.155(c)(21)).
27 Id. (citing Moore v. State, 174 P.3d 770 (Alaska App. 2008); Tazruk v.
State, 67 P.3d 687, 689 (Alaska App. 2003)).
28 Id. (citations omitted).
29 Id.
30 Id.
31 Id. at 798-99 (reiterating legislature's recognition "that sex offenses can
have a serious impact on the victim and society" and reasoning that "it does not follow
that it would be manifestly unjust to sentence a sex offender with a moderate risk of
recidivism to a sentence within the presumptive range").
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D. The 2013 Legislative Response: Ch. 43, §§ 1, 22-23, 46, SLA 2013
While the Collins I petition for hearing was pending in our court, the
legislature amended the statutes governing referrals to the three-judge sentencing
panel.32 The session law included the following findings:
(1) in 2006, the legislature did not intend, by enacting ch. 14,
SLA 2006, and the legislature does not now intend to create
new or additional means for a defendant convicted of a
sexual felony and sentenced under AS 12.55.125(i) to obtain
referral to a three-judge panel;
(2) the legislature did not, in 2006, intend nor does the
legislature now intend for a court to create new or additional
means for a defendant convicted of a sexual felony and
sentenced under AS 12.55.125(i) to obtain referral to a three-
[33]
judge panel.
The legislature expressly stated its intent "to overturn the majority decision in [Collins
34
I], and to endorse the dissenting opinion in the same case."
The legislature accordingly added a new subsection (c) to AS 12.55.165,
the statute defining the circumstances under which sentencing courts may refer cases to
the three-judge panel :
(c) A court may not refer a case to a three-judge panel . . . if
the defendant is being sentenced for a sexual felony under
AS 12.55.125(i) and the request for the referral is based
solely on the claim that the defendant, either singly or in
combination, has
(1) prospects for rehabilitation that are less than
extraordinary; or
32 Ch. 43, §§ 1, 22-23, SLA 2013.
33 Id. § 1(b).
34 Id. § 1(c); see also id. § 1(a) (reaffirming "the findings made by the Senate
letter of intent for ch. 14, SLA 2006, as published in the 2006 Senate Journal dated
February 16, 2006").
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(2) a history free of unprosecuted, undocumented, or
undetected sexual offenses.[35]
And the legislature also amended AS 12.55.175, the statute creating and describing the
responsibilities of the three-judge panel, by adding subsection (f):
(f) A defendant being sentenced for a sexual felony under
AS 12.55.125(i) may not establish, nor may the three-judge
panel find under (b) of this section or any other provision of
law, that manifest injustice would result from imposition of
a sentence within the presumptive range based solely on the
claim that the defendant, either singly or in combination,
has
(1) prospects for rehabilitation that are less than
extraordinary; or
(2) a history free of unprosecuted, undocumented, or
undetected sexual offenses.[36]
These amendments went into effect on July 1, 2013.37 Section 46 of the session law
states that the amendments to AS 12.55.165 and AS 12.55. 175, among other changes
to the law, "apply to offenses committed before, on, or after the effective date of this
38
Act."
In February 2014 we dismissed the State's petition for hearing in Collins
I as improvidently granted, meaning that the court of appeals' opinion remained
39
undisturbed.
35 Id. § 22.
36 Id. § 23.
37 Id. § 48; see also 2013 S. Journal 1308.
38 Id. § 46(b).
39 See K.L.F. v. State, 820 P.2d 1076, 1077 (Alaska 1991) (Compton, J.,
dissenting) (noting that "[t]he net result" of the dismissal of a petition as "improvidently
granted" "is that the decision of the court of appeals stands as the most recent [judicial]
pronouncement" on the issue); see also Lucier v. Steiner Corp., 93 P.3d 1052, 1052 n.1
(Alaska 2004) (applying "to cases such as the present where petitions for review are
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E. The Superior Court Sentencing Following Collins I
After we dismissed the petition for hearing, the superior court, following
the court of appeals' instructions in Collins I, again considered whether Collins's case
should be referred to the three-judge sentencing panel. In a February 2017 order, the
superior court first acknowledged the significant statutory changes that had been made
since Collins I was decided. The court observed that its "core function" was "to apply
the law as it exists at the time of decision and so as to avoid absurd results." "The
present state of the law," the court opined, "forbids the Court from engaging in the legal
inquiry required under Collins [I] in any case other than this one," though in the court's
view Collins I did "not similarly bind the three judge panel." The court reasoned,
therefore, that if it were to "determine that referral to the three judge panel is proper,
the three judge panel would be obliged to apply the law as it exists now: that is, the
three judge panel is prohibited from engaging in the same legal inquiry" that Collins I
required the sentencing judge to undertake. The court concluded that it should avoid
"[t]his absurd result - that the Superior Court should refer a matter to the three judge
panel to consider a matter it may not consider." The court therefore stood by its original
decision that referral to the three-judge panel was not justified.
Collins again appealed to the court of appeals.
F. The Court Of Appeals Decision In Collins II
On his second sentence appeal Collins argued that "because his crime was
committed before the 2013 session law was enacted, the ex post facto clauses of the
federal constitution and the Alaska constitution prohibit the courts from applying the
initially granted and then dismissed as improvidently granted" our earlier statement in
Contento v. Alaska State Hous. Auth., 398 P.2d 1000, 1001 (Alaska 1965) that "[a]
denial of a petition for review of an interlocutory order does not mean that we either
approve or disapprove of the order sought to be reviewed, but merely that we decline
to pass judgment at all on the action of the trial court").
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2013 session law to him."40 In addition, and contrary to the superior court's conclusion,
Collins argued that both the sentencing judge and the three-ju dge panel on referral were
41
"required to apply the law as stated in the Collins [I] majority opinion."
The court of appeals disagreed. It concluded that it had been wrong in
Collins I when it recognized non-statutory mitigating factors, because "despite what
was said in the Collins [I] majority opinion, the 2006 sentencing statute did not expand
the grounds for seeking referral to the three-judge panel ."42 Collins therefore "was not
entitled to seek referral to the three-judge panel based solely on the two grounds
identified in the Collins [I] majority opinion," though he could still argue for referral
"by asserting that the prescribed presumptive sentencing range is manifestly unjust,
given the circumstances of his case."43 The court reached this conclusion by
44
"examin[ing] and apply[ing] the doctrine of 'clarifying legislation.' "
The court explained that under this doctrine "there are times when new
legislation does not change existing law, but instead only clarifies existing law."45 It
recognized that the doctrine has "special significance when, as in the present case, the
statute at issue is a penal statute," because the ex post facto clauses of the United States
and Alaska constitutions "forbid[] the legislature from enacting or amending a penal
statute so as to retroactively criminalize, or increase the penalty for, acts that have
40 See Collins II, 494 P.3d 60, 64 (Alaska App. 2021); see also U.S. Const.
art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed."), § 10, cl.
1 ("No state shall . . . pass any Bill of Attainder [or] ex post facto law[.]"); Alaska Const.
art. I, § 15 ("No bill of attainder or ex post facto law shall be passed.").
41 Collins II, 494 P.3d at 64.
42 Id. at 65.
43 Id. (citing AS 12.55.165-.175).
44 Id. at 64-65 ("This doctrine of clarifying legislation is central to our
resolution of Collins's appeal.").
45 Id. at 64 (emphasis in original).
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already been committed."46 The court further explained, however, that a legislative
clarification does not run afoul of the prohibition on ex post facto laws because "the
courts treat the pre-existing version of the statute as having always meant what the
clarifying enactment declares it to mean."47 "Thus, there has been no change in the law
- and no issue of retroactivity when courts apply the now-clarified statute to criminal
48
cases that arose before the legislature enacted the clarifying legislation."
The court highlighted "[t]he main limitation on this doctrine of clarifying
legislation," which is based on separation of powers principles: "the legislature is not
permitted to 'clarify' the meaning of a statute that conflicts with an interpretation that
has already been announced by the jurisdiction's highest court."49 Noting that
clarifying legislation helps a court interpret an earlier statute whose meaning is
otherwise "in doubt," the court explained that "as a matter of law, a court cannot be 'in
doubt' about the meaning of the earlier statute when, with regard to the relevant issue,
that statute has already been construed by the highest court in the jurisdiction."50 For
the case at hand, an interpretation placed on the statute by the "highest court"
necessarily controls over any subsequent legislative attempt to interpret the statute
51
differently.
To "illustrate the application of this doctrine," the court of appeals relied
primarily on two California cases: McClung v. Employment Development
46 Id. at 64-65 (citing Collins v. Youngblood, 497 U.S. 37, 43 (1990); State
v. Creekpaum, 753 P.2d 1139, 1142 (Alaska 1988)); see also note 40, supra .
47 Collins II, 494 P.3d at 65 (emphasis in original).
48 Id.
49 Id . at 65-66 ("This limitation stems from the principle that the judicial
branch of government is the ultimate arbiter of a statute's meaning.").
50 Id. at 66 (quoting United States v. Stafoff, 260 U.S. 477, 480 (1923)).
51 Id.
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Department52 and Western Security Bank, N.A. v. Superior Court.53 The court noted
that in Western Security Bank the California Supreme Court held that new legislation
amending a statute - and expressing an "intent to 'confirm and clarify the law' and
'abrogate the holding' " of a recent court of appeal decision - merely clarified the
existing law.54 And the court of appeals relied on McClung for the proposition that "a
legislative amendment could not be considered a 'clarification'[] because the legislative
55
amendment purported to overturn a final decision of the [California] supreme court."
The court of appeals concluded from these cases that "the doctrine of clarifying
legislation potentially applies [to] situations where a jurisdiction's highest court has not
56
yet issued a controlling interpretation of the pre-existing statute."
The court of appeals next reviewed our prior applications of the doctrine
of clarifying legislation.57 The court cited Municipality of Anchorage v. Sisters of
Providence in Washington58 for its holding that "the fact that the Alaska legislature had
acted in response to an ongoing dispute about the meaning of the pre-existing version
of the law" was "the most persuasive factor" in determining that subsequent legislation
was a clarification of existing law.59 The court cited Matanuska-Susitna Borough v.
Hammond60 for the proposition that the legislature's failure to amend a particular term
in a tax statute, while amending other portions of it following a superior court's ruling
52 99 P.3d 1015, 1020 (Cal. 2004).
53 933 P.2d 507, 514 (Cal. 1997); Collins II, 494 P.3d at 66.
54 Collins II, 494 P.3d at 66 (quoting W. Sec. Bank, N.A., 933 P.2d at 513).
55 Id. (emphasis in original) (quoting McClung , 99 P.3d at 1020).
56 Id.
57 Id. at 67-69.
58 628 P.2d 22, 28 (Alaska 1981).
59 Collins II, 494 P.3d at 67-68 (citing Sisters of Providence, 628 P.2d at 28).
60 726 P.2d 166, 176 & n.21 (Alaska 1986).
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on what the term meant, was "an implicit legislative endorsement of the pre-existing
statutory language - and, more particularly, an endorsement of the superior court's
ruling" on the term's meaning.61 The court next described limitations we had placed
on the doctrine: that it "cannot be used to alter the meaning of a pre-existing statute
which was not ambiguous regarding the issue being litigated";62 and further, "that little
weight, if any, should be given to the legislature's statements that it acted to 'clarify'
the intent of a previous legislature."63 The court noted our most recent application of
these interpretive rules in Angelica C. v. Jonathan C., in which we stressed that a
subsequent legislature's statement of an earlier legislature's intent was persuasive at
best but concluded that the wording and structure of the new law supported a clarifying
64
intent.
The court of appeals then summarized the governing legal principles it
derived from these cases:
The law presumes that any new statute constitutes a change
in the law rather than a clarification of pre-existing law, but
this presumption can be rebutted by the wording and
legislative history of the new statute, by the context in which
the legislature acted, and by whether the wording of the new
statute is consistent with a reasonable interpretation of the
[65]
pre-existing statute.
61 Collins II, 494 P.3d at 68 (citing Hammond, 726 P.2d at 176 & n.21).
62 Id. (emphasis in original) (citing Hillman v. Nationwide Mut. Fire Ins.
Co., 758 P.2d 1248, 1252 (Alaska 1988)).
63 Id. at 68-69 (emphasis in original) (relying thereafter on, among other
cases, Hageland Aviation Servs., Inc. v. Harms, 210 P.3d 444, 448 n.12 (Alaska 2009)).
The court also discussed Angelica C. v. Jonathan C. , 459 P.3d 1148 (Alaska 2020), as
the "most recent example" of our applying the "doctrine of clarifying legislation."
Collins II, 494 P.3d at 68-69.
64 Id. at 69 (citing Angelica C. , 459 P.3d 1148, 1157-58 (Alaska 2020)).
65 Id.
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Applying the doctrine as thus summarized to Collins's case, the court of
appeals began "with the presumption that any new legislation represents a change in the
law" and framed the question as "whether that presumption is rebutted by the wording
and legislative history of the 2013 session law, as well as the circumstances that
prompted the legislature to act."66 The court summarized the 2013 legislature's stated
purpose while acknowledging that that statement of purpose was not binding on the
court:
[T]he legislature enacted the 20 13 session law in quick
response to [the court of appeals'] decision in Collins[ I] . . .
[and] its purpose was (1) to clarify the intent of the pre-
existing sentencing statute, (2) to disavow the interpretation
of the law adopted by the Collins [I] majority, and (3) to
endorse the interpretation advocated in Judge Bolger's
dissent. Finally, the legislature acted while this issue of
statutory interpretation was still pending in front of the
supreme court - i.e., still unresolved by the highest judicial
[67]
authority in Alaska.
Given these circumstances, and "given the fact that there was reasonable debate
regarding the proper interpretation of the pre-existing law (as demonstrated by this
Court's two-to-one decision in Collins [I])," the court concluded that the 2013 session
law "represents a clarification of Alaska's pre-existing sentencing law rather than a
change to that law"; the court therefore had to "treat the 2006 sentencing statute as if it
had always embodied the legislature's later clarification."68 As a consequence, "the ex
post facto clauses of the federal and state constitutions do not bar the courts from
applying the law stated in the 2013 session law to cases that arose before the legislature
66 Id. at 69-70.
67 Id. at 70.
68 Id.
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acted - including Collins's own case, which provided the impetus for the legislature's
69
clarifying enactment."
The court of appeals' ultimate holding, therefore, was that "Collins and
other similarly situated offenders are not entitled to seek referral of their cases to the
three-judge sentencing panel solely on the two grounds announced in the Collins [I]
majority opinion."70 Collins could, however, still "seek a referral to the three-judge
panel based on the ground that his prescribed presumptive sentencing range would be
manifestly unjust under the circumstances of his case" - the "totality" of which could
include argument and evidence "(1) that he has committed no prior sexual offenses, and
71
(2) that he has good prospects for rehabilitation."
Collins filed a petition for hearing, which we granted and which we now
address.
G. The Arguments Before Us
Collins argues that we "should vacate Collins II and direct the superior
court to apply Collins [I] to Collins himself." He asserts that "Collins [I] was a binding
appellate court interpretation of Alaska's sentencing statute" and the legislature was not
empowered to overturn it retroactively. He argues that Collins II's interpretation to the
contrary violates both the separation of powers doctrine and the ex post facto clauses of
the United States and Alaska constitutions. Collins also argues that we have "largely
rejected the 'doctrine of clarifying legislation' set out by the court of appeals in Collins
II ." And he argues that even if our case law allowed recognition of clarifying legislation
under some circumstances, that would "not include 'clarifying' a statute that has already
69 Id.
70 Id.
71 Id. at 71.
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been interpreted in a binding appellate court decision - and certainly not 'clarifying'
a criminal statute to a criminal defendant's disadvantage."
In response, the State argues that Collins II was correctly decided. It asks
that "[t]o the extent Collins I is not overruled by Collins II or by Ch. 43, §§ 1, 22, 23
SLA 2013, this court should explicitly overrule the two new stand-alone non-statutory
mitigating factors," while pointing out that Collins II still allows "courts to consider the
Collins I factors - not as stand-alone non-statutory mitigating factors - but rather
under the totality of the circumstances, in evaluating whether a sentence within the
presumptive range is manifestly unjust." The State asks that we affirm Collins's
sentence.
STANDARD OF REVIEW
We apply de novo review to questions of law, including matters of
statutory72 and constitutional73 interpretation. When we consider an issue de novo, we
74
"adopt the rule which is most persuasive in light of precedent, reason, and policy."
DISCUSSION
Based on the two questions we asked the parties to address, we frame the
issue on this petition as follows: whether a legislative amendment, clearly intended by
the legislature as "clarifying" the meaning of an earlier statute, may be applied
retroactively to overrule a binding judicial interpretation of the statute in a particular
case. Subject to the "substantive/procedural" distinction we discuss in the final section
of this discussion, we hold that retroactive application of the later statute is not allowed
in such circumstances, based primarily on two constitutional precepts: the separation
of powers doctrine and the prohibition on ex post facto laws.
72 Doe v. State, 189 P.3d 999, 1002-03 (Alaska 2008).
73 Dara v. Gish , 404 P.3d 154, 159 (Alaska 2017).
74 Doe, 189 P.3d at 1003 (quoting State v. Murtagh, 169 P.3d 602, 606
(Alaska 2007)).
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A. Two Constitutional Principles - Separation Of Powers And The
Prohibition On Ex Post Facto Laws - Shape Our Decision.
The first constitutional precept on which our decision today turns is the
separation of powers. "[T]he Alaska Constitution follows the traditional framework
with three branches - executive, legislative, and judicial - of American
government."75 Each branch has its distinct constitutional function. "The Alaska
Constitution vests legislative power in the legislature; executive power in the governor;
and judicial power in the [courts]. The separation of powers doctrine limits the
authority of each branch to interfere in the powers that have been delegated to the other
branches."76 Thus, the courts are "prohibit[ed] from enacting legislation or redrafting
defective statutes."77 But while the courts cannot draft new laws, it is ultimately their
78
responsibility to interpret existing ones.
When carrying out this responsibility, courts "are bound to give effect to
the legislative intent discerned from the text, legislative history, and underlying
statutory purpose."79 This kind of contemporaneous legislative information is clearly
75 Meyer v. Alaskans for Better Elections , 465 P.3d 477, 481 n.20 (Alaska
2020).
76 Alaska Pub. Int. Rsch. Grp. v. State , 167 P.3d 27, 35 (Alaska 2007)
(citation omitted).
77 Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1131 (Alaska 2017)
(quoting State v. Campbell, 536 P.2d 105, 111 (Alaska 1975), overruled on other
grounds by Kimoktoak v. State, 584 P.2d 25 (Alaska 1978)).
78 See Alaska Pub. Int. Rsch. Grp., 167 P.3d at 43 ("The judiciary alone
among the branches of government is charged with interpreting the law." (citing
Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177 (1803))); see also Marbury, 5 U.S. at
177 ("It is emphatically the province and duty of the judicial department to say what
the law is.").
79 Native Vill. of Kwinhagak v. State, Dep't of Health & Soc. Servs., Off. of
Child.'s Servs., 542 P.3d 1099, 1114 (Alaska 2024).
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critical to the courts' interpretive task. But the question here concerns a later
legislature's statement of an earlier statute's meaning - the 28th Alaska Legislature's
opinion as to what the 24th Alaska Legislature intended almost a decade earlier. What
effect does that opinion have on the courts' task of statutory interpretation?
The answer is that we give the later legislative opinion consideration but
not conclusive authority, as the court of appeals recognized in Collins II .80 We
explained 36 years ago:
While the legislature is fully empowered to declare present
law by legislation, it is not institutionally competent to issue
opinions as to what a statute passed by an earlier legislature
meant. If the legislature were in some form to declare its
opinion as to the meaning of prior law, that declaration
would be entitled to the same respect that a court would
afford to, for example, an opinion of a learned commentator;
that is, the court would examine the reasoning offered in
support of the opinion and either reject or accept it based on
the merit of the reasons given.[81]
80 494 P.3d 60, 67 (Alaska App. 2021) (observing that "the legislature's
action [declaring an intent to clarify an earlier statute] is only a factor that the courts
should consider when determining the meaning and effect of the pre-existing statute").
81 Hillman v. Nationwide Mut. Fire Ins. Co., 758 P.2d 1248, 1252 (Alaska
1988). We have applied this interpretive canon repeatedly. See, e.g., Angelica C. v.
Jonathon C. , 459 P.3d 1148, 1157-58 (Alaska 2020) (quoting Hageland Aviation
Servs., Inc. v. Harms, 210 P.3d 444, 448 n.12 (Alaska 2009) - which quoted Hillman
- in support of principle that despite legislature's declaration of clarifying purpose,
"we independently decide whether the recent amendments change the effect [of a
statute] or merely clarify its meaning"); State v. Dupier, 118 P.3d 1039, 1046 n.29
(Alaska 2005) (declining to treat legislative amendment as clarification of pre-existing
law and relying upon Hillman); Hickel v. Cowper, 874 P.2d 922, 925 n.7 (Alaska 1994)
(noting that deference to "legislature's interpretation of the constitutional terms at issue
in this case . . . is at most . . . a single tool for use by this court in interpreting the
constitution"); Flisock v. State, Div. of Ret. & Benefits, 818 P.2d 640, 645 (Alaska 1991)
(noting that "legislative history of the 1982 amendments is of little help in determining
the law in 1969" (emphasis in original)).
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The other constitutional principle central to our analysis is found in the ex
post facto clauses of the United States and Alaska constitutions, which "forbid[] the
legislature from enacting or amending a penal statute so as to retroactively criminalize,
or increase the penalty for, acts that have already been committed."82 The U.S. Supreme
Court has held that retroactive changes to applicable sentencing ranges are subject to
this prohibition.83 Legislatures may always, of course, say what the law is going
forward, and they may by statute clarify prior law.84 But "courts must begin with the
presumption that any new legislation represents a change to pre-existing law, not
merely a clarification of pre-existing law."85 And this is regardless of the legislature's
own statements about whether it intends its amendment to be clarifying, since such
statements, as we held in Hillman, are informative but not authoritative - much like
86
"an opinion of a learned commentator."
82 Collins II , 494 P.3d at 64-65; U.S. Const. art. I, § 9, cl. 3 ("No bill of
attainder or ex post facto law shall be passed."); Alaska Const. art. I, § 15 (same).
83 See, e.g., Peugh v. United States, 569 U.S. 530, 550 (2013) ("[T]he Ex
Post Facto Clause forbids the [government] to enhance the measure of punishment by
altering the substantive 'formula' used to calculate the applicable sentencing range."
(alterations in original) (quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 505
(1995))).
84 See Collins II, 494 P.3d at 65 n.7 (explaining that "[t]he legislature is
vested with plenary power to change the substantive law prospectively, but it may not
disturb vested substantive rights by retroactively changing the law that applies to
completed events"; that "[t]he substantive legal consequence of past events is
determined by the law in effect at the time of the event, and the determination of that
law is for the courts to decide"; and that therefore,"[a] fortiori , the separation of powers
doctrine prevents the legislature from changing the rule of decision in completed cases"
(quoting State v. Murray, 982 P.2d 1287, 1289 (Ariz. 1999))).
85 Id. at 66.
86 Hillman, 758 P.2d at 1252.
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B. If Substantive, The 2013 Legislation Cannot Be Applied Retroactively
To Collins In Contravention Of The Court Of Appeals' Preexisting
Interpretation Of The Law As It Applied To His Case.
The court of appeals in Collins II recognized that the legislature intended
in 2013 to clarify the 2006 sentencing statutes and intended its clarification to have
retroactive effect.87 As the court of appeals explained, the legislature's intent was very
clear, both from its express statements of purpose and from the historical context in
88
which it was legislating.
Despite the clarity of the legislature's intent in 2013, the court of appeals'
task in Collins II was still to determine what the legislature intended in 2006, looking
to the 2013 legislation only for interpretive help to the extent the court credited "the
merit of the reasons given."89 And the court of appeals had already interpreted the 2006
sentencing law itself in Collins I. We must conclude that the court in Collins II gave
too much weight to the legislature's 2013 declaration of purpose and too little weight
to its own preexisting and binding interpretation of the 2006 sentencing law.90 However
the 2013 amendments are characterized - whether as clarifying, amending, or
87 Collins II, 494 P.3d at 69-70.
88 Id.
89 Hillman, 758 P.2d at 1252.
90 The court of appeals' summary of the doctrine of clarifying legislation
focuses on the later legislative intent - an interpretive aid at best - to the near
exclusion of the earlier legislative intent, which should be determinative. Summarizing
its analytical framework, the court concluded that the presumption "that any new statute
constitutes a change in the law rather than a clarification of pre-existing law . . . can be
rebutted by the wording and legislative history of the new statute, by the context in
which the [more recent] legislature acted," and also "by whether the wording of the
new statute is consistent with a reasonable interpretation of the pre-existing statute."
Collins II, 494 P.3d at 69 (emphasis added). Unfortunately absent from this summary
is an analysis of the original legislature's intent independent of the later legislature's
opinion of that intent.
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interpretative91 - they necessarily did change the law, because the law at the time of
the 2013 legislation was as the court of appeals had determined it to be in Collins I.
We quote with approval the court of appeals' explanation of "[t]he main
limitation on this doctrine of clarifying legislation":
The main limitation on this doctrine of clarifying legislation
is that the legislature is not permitted to "clarify" the
meaning of a statute in a way that conflicts with an
interpretation that has already been announced by the
jurisdiction's highest court . This limitation stems from the
principle that the judicial branch of government is the
ultimate arbiter of a statute's meaning.
As the United States Supreme Court explained in United
States v. Stafoff, a statute that purports to clarify the meaning
of an earlier statute "might be of great weight" in assisting a
court when the meaning of the earlier statute is "in doubt".
But, as a matter of law, a court cannot be "in doubt" about
the meaning of the earlier statute when, with regard to the
relevant issue, that statute has already been construed by the
highest court in the jurisdiction. In such instances, the high
91 The most commonly cited text on statutory construction categorizes
statutes like the 2013 amendments at issue here as "special interpretive statutes," which
are those intended "to correct a judicial interpretation of a prior law which the
legislature considers inaccurate." 1A NORMAN SINGER & SHAMBIE SINGER,
SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 27:4 (7th ed. 2023).
According to Sutherland, special interpretive statutes are given only prospective effect,
because "[a]ny other result would make the legislature a court of last resort," violating
separation of powers principles. Id. (citing cases).
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court's decision "must stand for the law" as it existed prior
[92]
to the enactment of the purported clarifying legislation.
The court of appeals then went on to discuss two California cases relevant to this
limitation: Western Security Bank, N.A., which held that a legislative change clarified
a statute even though it was expressly intended to " 'abrogate the holding' of a
California Court of Appeal decision issued in a previous year";93 and McClung, which
held that a legislative change "could not be considered a 'clarification', because the
94
legislative amendment purported to overturn a final decision of the supreme court."
The court of appeals plainly read this authority as meaning that it is only
"the highest court in the jurisdiction" - here, the Alaska Supreme Court - that can
resolve an issue of statutory interpretation such that the legislature cannot retroactively
change it: "[T]he legislature acted while this issue of statutory interpretation was still
pending in front of the supreme court - i.e., still unresolved by the highest judicial
authority in Alaska"; and "there was reasonable debate regarding the proper
interpretation of the pre-existing law (as demonstrated by [the court of appeals'] two-
to-one decision in Collins [I])."95 But we disagree with this reasoning.
92 Collins II, 494 P.3d at 65-66 (citations omitted) (quoting United States v.
Stafoff, 260 U.S. 477, 480 (1923)); see also SINGER & SINGER, supra note 91, at § 41 :15
(stating that "a clarifying statute may not apply retroactively where it responds to a
decision from a state's highest court, as such a judicial construction operates as if it
were written into the original statute," and that this clarification doctrine limitation "is
designed to avoid the separation-of-powers problem that would result if a legislature,
under the guise of clarification, could overrule by enactment an authoritative judicial
construction").
93 Collins II, 494 P.3d at 66 (citing W. Sec. Bank, N.A. v. Superior Ct., 933
P.2d 507, 513 (Cal. 1997)).
94 Id. (emphasis in original) (quoting McClung v. Emp. Dev. Dep't, 99 P.3d
1015, 1020 (Cal. 2004)).
95 Id. at 70.
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First, the California courts are not a clear analog for Alaska's. We have
one court of appeals whose decisions, by statute, are authoritative statewide and binding
on all lower courts unless superseded on discretionary review.96 California, on the other
hand, has six appellate districts comprising 19 divisions;97 intermediate appellate
decisions bind the lower courts but are sometimes in conflict, meaning that the trial
courts have to decide which to follow.98 And the California courts of appeal are not
bound by each other's precedent.99 In such a system it makes sense that only a supreme
96 AS 22.07.020(g) ("A final decision of the court of appeals is binding on
the superior court and on the district court unless superseded by a decision of the
supreme court.").
97 See, e.g., Cal. Gov't. Code § 69100 ("The state is divided into six court of
appeal districts."); see also Cal. Const. art. VI, § 3 ("The legislature shall divide the
State into districts each containing a court of appeal with one or more divisions.");
JUDICIAL COUNCIL OF CALIFORNIA, A VISITOR 'S GUIDE TO THE CALIFORNIA COURTS
OF APPEAL, https://www.courts.ca.gov/documents/ctappbro.pdf.
98 See, e.g., Auto Equity Sales, Inc. v. Superior Ct. of Santa Clara Cnty., 369
P.2d 937, 940 (Cal. 1962) ("Decisions of every division of the District Courts of Appeal
are binding upon all the justice and municipal courts and upon all the superior courts of
this state."); id. (noting that when appellate decisions conflict, "the court exercising
inferior jurisdiction can and must make a choice between the conflicting decisions");
see also McCallum v. McCallum, 235 Cal. Rptr. 396, 400 n.4 (Cal. App. 1987) ("As a
practical matter, a superior court ordinarily will follow an appellate opinion emanating
from its own district even though it is not bound to do so. Superior courts in other
appellate districts may pick and choose between conflicting lines of authority.")
99 Sarti v. Salt Creek Ltd., 85 Cal. Rptr. 3d 506, 510-11 (Cal. App. 2008)
(recognizing that "there is no horizontal stare decisis in the California Court of Appeal.
This court - this panel - is not bound by [a prior Court of Appeal decision] and we
may take a more critical approach to that opinion." (emphasis in original) (citations
omitted)); In re Marriage of Shaban , 105 Cal. Rptr. 2d 863, 870 (Cal. App. 2001)
(acknowledging that "because there is no 'horizontal stare decisis' within the Court of
Appeal, intermediate appellate court precedent that might otherwise be binding on a
trial court is not absolutely binding on a different panel of the appellate court" (internal
citation omitted)).
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court decision will foreclose legislative attempts to retroactively "clarify" a debatable
issue of statutory interpretation.
The difference in Alaska, with a single court of appeals, is significant.
Alaska Statute 22.07.020(g) provides that "[a] final decision of the court of appeals is
binding on the superior court and on the district court unless superseded by a decision
of the supreme court." This provision, as the court of appeals has recognized, "codifies
the principle of vertical stare decisis, under which lower courts are required to follow
the precedent of higher courts."100 "Thus, . . . if [the court of appeals] publishes [its]
decision in a case, the statements of law in that case are precedent, binding on the trial
courts, unless and until those statements of law are superseded by a decision of the
Alaska Supreme Court."101 As relevant here, this means that Collins I was the final and
binding judicial interpretation of the 2006 sentencing laws at the time the legislature
enacted the 2013 legislation clarifying that earlier law's intent. We had the opportunity
to review Collins I on the first petition for hearing and dismissed the petition as
improvidently granted in February 2014. Dismissal of the petition did not overrule
Collins I or otherwise supersede its authority. By law, Collins I remained "binding on
102
the superior court and on the district court."
We recognize that the California cases on which the court of appeals relied
make a distinction between the decisions of an intermediate appellate court and those
of the supreme court in this context, as demonstrated by Western Security Bank and
McClung .103 We note also, however, that the court in McClung , describing its decision
100 State v. Seigle, 394 P.3d 627, 633 (Alaska App. 2017).
101 Id.
102 AS 22.07.020(g).
103 W. Sec. Bank, N.A. v. Superior Ct., 933 P.2d 507, 520 (Cal. 1997)
(deciding that amendment "simply clarified and confirmed the state of the law" despite
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in Western Security Bank, explained that "the only judicial action that had interpreted
the statute before the Legislature amended it was a Court of Appeal decision that never
became final."104 But under our statutes, again, the court of appeals' decision in Collins
I was final when issued and remained so, having never been superseded by a decision
105
of this court.
The Washington courts have visited this subject a number of times, in
cases both civil and criminal. The Washington court system, like California's, has a
number of intermediate appellate courts that sometimes rule differently on the same
issue and are not bound by each other's decisions.106 But even in that context the
intervening Court of Appeal decision); McClung v. Emp. Dev. Dep't, 99 P.3d 1015,
1022 (Cal. 2004) (deciding that change in law was not clarification because there was
intervening "final and definitive judicial interpretation" by California Supreme Court);
see also Lone Star Sec. & Video, Inc. v. Bureau of Sec. & Investigative Servs., 98 Cal.
Rptr. 3d 559, 566 n.8 (Cal. App. 2009) (concluding that under McClung , statute was
not impermissibly retroactive when "former [law] was not finally and conclusively
interpreted by the courts because [intervening judicial decision] was a decision by the
Court of Appeal, not the Supreme Court").
104 McClung , 99 P.3d at 1022 (emphasis added). The Court of Appeal's
original decision in Western Security Bank apparently "never became final," see
McClung , 99 P.3d at 1022, because, as the court later explained, "the Legislature
accepted our invitation to address certain conflicting policy questions, [and] the
Supreme Court transferred the case back to [the court of appeal] to vacate our prior
opinion and to reconsider the matter in light of the statutory changes." W. Sec. Bank,
N.A. v. Superior Ct., 45 Cal. Rptr. 2d 664, 670 (Cal. App. 1995), rev 'd, 933 P.2d 507
(Cal. 1997)).
105 See AS 22.07.020(g); Seigle, 394 P.3d at 633.
106 See, e.g., In re Pers. Restraint of Arnold, 410 P.3d 1133, 1142 (Wash.
2018) (holding that "one division of the Court of Appeals should give respectful
consideration to the decisions of other divisions of the same Court of Appeals but one
division is not bound by the decision of another division"); id. at 1141 ("We recognize
that the reality of conflicting decisions will create some confusion. However, our
current system of rigorous debate at the intermediate appellate level creates the best
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Washington courts, when interpreting so-called clarifying legislation, have given
weight to the decisions of intermediate appellate courts in a way that we find persuasive
- as exhibiting the appropriate balance between deference to the legislature and
preservation of the independent judicial function.
In Johnson v. Morris , the Washington Supreme Court considered whether
a legislative amendment allowing the court to extend its delinquency jurisdiction over
a juvenile from age 18 to age 21 could be applied retroactively.107 The court had earlier
held "that juvenile court commitment power was coterminous with a child's minority,"
meaning that it ended when the child turned 18.108 The court in Johnson held that the
extension of jurisdiction was an unconstitutional ex post facto law when applied to an
18-year-old who had previously been adjudged delinquent; it specifically rejected "the
proposition that the legislature is empowered to retroactively 'clarify' an existing
statute, when that clarification contravenes the construction placed upon that statute by
this court."109 The court continued: "Such a proposition is disturbing in that it would
effectively be giving license to the legislature to overrule this court, raising separation
110
of powers problems."
Several later cases recited Johnson 's holding as denying retroactive effect
to a "subsequent enactment [that] contravenes the construction placed on the original
structure for the development of Washington common law"); Union Bank N.A. v.
Vanderhoek Assocs., LLC, 365 P.3d 223, 229 (Wash. App. 2015) (favoring approach
that would "allow the trial courts to independently evaluate the conflicting precedent
and conclude how our Supreme Court would resolve the conflict").
107 557 P.2d 1299, 1301-02 (Wash. 1976).
108 Id . at 1302 (citing In re Carson , 530 P.2d 331, 333 (Wash. 1975)).
109 Id. at 1303.
110 Id.
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statute by this court," i.e., the Washington Supreme Court.111 But in State v.
Dunaway 112 the court made clear that decisions of the courts of appeal could be
similarly authoritative. At issue was a sentencing statute providing "that separate
crimes encompassing 'the same criminal conduct' must be treated as one crime in
determining criminal history" - "criminal history" being a significant factor in
sentencing.113 A Washington court of appeals had held that whether arguably separate
actions (for example, kidnapping and assault) constituted "the same criminal conduct"
was determined under an "objective intent" test, and three other courts of appeals
114
adopted this analysis; those three cases were combined for appeal in Dunaway .
While the appeals were pending the legislature enacted a statutory
definition of the term "same criminal conduct," but the Washington Supreme Court
instead applied the court of appeals' "objective intent" test to the cases before it,
declining to give the new law retroactive effect.115 The court explained that although
"[a]n enactment supplying a definition for an ambiguous term contained in an earlier
statute is merely a clarification, . . . even a clarifying enactment cannot be applied
retrospectively when it contravenes a construction placed on the original statute by the
111 Overton v. Wash. State Econ. Assistance Auth., 637 P.2d 652, 656 (Wash.
1981) (emphasis added); see also Marine Power & Equip. Co. v. Wash. State Hum. Rts.
Comm'n Hearing Tribunal, 694 P.2d 697, 700 (Wash. App. 1985) ("The Legislature
may not, under the guise of clarification, overrule by legislative enactment a prior
authoritative Supreme Court opinion construing a statute.").
112 743 P.2d 1237 (Wash. 1987).
113 Dunaway, 743 P.2d at 1238 (quoting former Wash. Rev. Code. §
9.94A.400(1)(a)).
114 Id. at 1240-41 (citing State v. Edwards, 725 P.2d 442 (Wash. App. 1986),
overruled in part by Dunaway, 743 P.2d at 1241).
115 Id. at 1241.
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judiciary. "116 "Any other result would make the legislature a court of last resort."117
Therefore, because "[t]he Court of Appeals has already construed the [sentencing law's]
'same criminal conduct' language in a manner that is inconsistent in certain respects
with the [new] statutory definition, . . . we will not apply [that] definition to the present
118
cases."
A later Washington court of appeals decision directly refuted an argument
"that separation of powers principles are violated only if a legislative enactment
contravenes the Supreme Court's, not the Court of Appeals', construction of the original
statute."119 At issue was a statute purporting to clarify that the Department of
Corrections had always had the discretionary authority to impose a particular
precondition on community placement; a court of appeals had earlier ruled in In re
Personal Restraint of Capello that the precondition could be imposed only by the
sentencing court.120 The court of appeals in Stewart observed that the legislature was
"in effect attempting to overrule Capello by expressly stating that the amendments are
retroactive," but "[r]etroactive application of the amendments . . . would violate the
constitutional separation of powers doctrine because the legislative branch of
government cannot retroactively overrule a judicial decision which authoritatively
121
construes statutory language."
116 Id. at 1241 n.6 (emphasis added; citations omitted).
117 Id. (quoting 1A C. SANDS, STATUTORY CONSTRUCTION § 27.04 (4th ed.
1985)).
118 Id.
119 In re Pers. Restraint of Stewart, 75 P.3d 521, 529-30 (Wash. App. 2003).
120 Id. at 523-25 (citing In re Pers. Restraint of Capello, 24 P.3d 1074 (Wash.
App. 2001), cert. denied, 37 P.3d 292 (Wash. 2001), superseded by statute 2002 Wash.
Sess. Laws Ch. 50, Wash. Rev. Code § 9.94A.728(2) (2002), as recognized in Stewart,
75 P.3d at 529-33.
121 Id. at 529.
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The court then explained why this rule applied to decisions of the courts
of appeals. It cited the "uncontradicted authority . . . that it is emphatically the province
of the judicial branch to say what the law is," noting that this "often-cited statement of
the separation of powers principle . . . does not limit application of it to the Supreme
Court, but rather refers to the judicial branch as a whole."122 The court's analysis
continued in a way that highlights the parallels to Collins's case:
The [Washington] Supreme Court is, without question, the
ultimate and final decision maker on the issue presented
here. But, pursuant to the enabling legislation for the Court
of Appeals, appeals from this court to the Supreme Court are
solely within the Supreme Court's discretion to hear. The
Supreme Court declined to review our decision in Capello
and has not otherwise addressed the issue presented in that
case. Accordingly, this court's opinion in In re Capello is
the law that must be followed on the issue presented with
respect to offenders sentenced before the [amendments at
issue]. Separation of powers principles prevent the
legislature from acting as a court of last resort and overruling
[123]
Capello with respect to those offenders.
Alaska's appellate process is the same in relevant respects. By statute, whether the
supreme court hears a case on a petition for hearing from the court of appeals is
122 Id. at 529-30 (quoting Cockle v. Dep't of Lab. & Indus., 16 P.3d 583, 588
(Wash. 2001)).
123 Id. at 530 (citations omitted); see also Am. Disc. Corp. v. Shepherd, 120
P.3d 96, 102 (Wash. App. 2005) ("Where the Supreme Court has not addressed an issue,
an existing Court of Appeals decision is the law that must be followed on the issue."
(citing Stewart, 75 P.3d at 530)). We note that the Washington Supreme Court later
stated in a footnote that it "disagree[d] with the reasoning of the Court of Appeals" in
Stewart, Hale v. Wellpinit Sch. Dist. No. 49 , 198 P.3d 1021, 1028 n.6 (Wash. 2009), but
the point of disagreement is not clear, and Stewart was not overruled. See State v.
Maples , 286 P.3d 386, 389 (Wash. App. 2012) ("Notably, the Hale decision did not
overrule Stewart, nor could it, as Stewart rested on the bedrock principle that the
legislature cannot contravene an existing judicial construction of a statute.").
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committed to the supreme court's discretion;124 the court of appeals ' decision remains
binding on the trial courts unless the supreme court grants review and issues a
superseding decision.125 And although the legislature is free to disapprove of a case's
outcome and clarify the law prospectively in reaction to it, it is not free to "act[] as a
court of last resort" and overrule the court of appeals' statement of the law that governs
126
the case before it.
In accordance with these principles, the Washington Supreme Court has
continued to emphasize the importance of respect between the branches, highlighting
the legislature's authority to disapprove of court decisions and reject their reasoning
even retroactively - but only as long as the legislature is "careful not to affect the rights
of any parties to a prior judgment, reopen a case, or interfere with any judicial
function."127 Other courts echo this formulation of the law.128 We conclude that
124 AS 22.05.010(d) ("The supreme court may in its discretion review a final
decision of the court of appeals on application of a party under AS 22.07.030.").
125 AS 22.07.020(g).
126 Stewart, 75 P.3d at 530.
127 In re Est. of Hambleton, 335 P.3d 398, 406 (Wash. 2014); see also Dot
Foods, Inc. v. State, Dep't of Revenue, 372 P.3d 747, 754-55 (Wash. 2016) ("We have
recognized 'that a retroactive legislative amendment that rejects a judicial interpretation
would give rise to separation of powers concerns' but have been willing to uphold such
amendments where 'the legislature was careful not to reverse our decision.' " (quoting
Hale, 198 P.3d at 1027-28)); Lummi Indian Nation v. State , 241 P.3d 1220, 1229 (Wash.
2010) ("The legislature made no attempt to apply the law to an existing set of facts,
affect the rights of parties to the court's judgment, or interfere with any judicial
function."); Hale, 198 P.3d at 1028 (recognizing law's retroactive effect did not violate
separation of powers principles because "[t]he legislature was careful not to reverse our
decision in McClarty nor did the legislature interfere with any judicial function").
128 See State v. Montes, 245 P.3d 879, 881 (Ariz. 2011) ("[T]he Legislature
does not violate separation of powers when it acts to make a law retroactive without
disturbing vested rights, overruling a court decision, or precluding judicial decision-
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because Collins I was authoritative and binding precedent when the legislature enacted
the 2013 amendments to the sentencing laws, the amendments - if they are substantive
rather than merely procedural - could not be applied retroactively to Collins himself
without violating the ex post facto clauses of the federal and Alaska constitutions. We
therefore reverse the court of appeals' decision in Collins II .
C. The Court Of Appeals Must Decide On Remand Whether The 2013
Amendments Are Substantive And Therefore Cannot Be Applied
Retroactively To Collins.
The State contends that the 2013 legislation, whether clarifying or not,
may constitutionally be applied to Collins's case because it is merely procedural -
"i.e., setting forth the procedures a defendant must follow to obtain a referral to the
three-judge panel" - and "[t]he ex post facto clause does not bar retrospective
application of procedural amendments." (Emphasis in original.) In support of this
argument the State cites, among other cases, Amin v. State , in which the court of appeals
considered whether an amendment to the sentence appeal statute, AS 12.55.120,
violated the ex post facto clause.129 The amendment eliminated the right to appeal a
sentence of imprisonment if the sentence "was imposed in accordance with a plea
agreement . . . [that] provided for imposition of a specific sentence or a sentence equal
130
to or less than a specified maximum sentence."
In arguing that the more limited appeal rights could not constitutionally
be applied to him retroactively, the defendant in Amin relied on the United States
making."); Gully v. State, 658 N.W.2d 114, 119 (Iowa App. 2002) (holding that
construing statutory amendment, "which established a meaning of that chapter directly
contrary to the supreme court's previous interpretation of it . . . , as a mere clarification
of the law would be effectively permitting the legislature to overrule a judgment of the
supreme court").
129 939 P.2d 413, 414 (Alaska App. 1997).
130 Id. at 415 (alterations in original) (quoting AS 12.55.120(a)).
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Supreme Court's statement in Miller v. Florida "that the ex post facto clause forbids
application of any retrospective law that 'disadvantage[s] the offender affected by
it.' "131 But the court of appeals interpreted the clause more narrowly, pointing instead
to the Supreme Court's more recent discussion of the clause's reach in California
Department of Corrections v. Morales , in which the Court described its traditional test
as "whether any [new law] alters the definition of criminal conduct or increases the
penalty by which a crime is punishable."132 The Court in Morales held that a California
law allowing a state corrections board "to decrease the frequency of parole suitability
hearings under certain circumstances" "create[d] only the most speculative and
attenuated risk of increasing the measure of punishment attached to the covered crimes"
and therefore could be applied retroactively without running afoul of the ex post facto
133
clause.
Applying this and other authority, the court of appeals concluded that
because the changes to Alaska's sentence appeal statute neither altered the definition of
crimes nor increased the punishment for those crimes, but rather only "altered the
procedure by which appellate review [could] be obtained (requiring some defendants to
file a petition for review rather than an appeal)," its retroactive application did not
134
present an ex post facto problem.
The court of appeals reiterated this analysis and conclusion five years later
in Stoneking v. State.135 The law in effect at the time of Stoneking's offense had allowed
a sentencing court to "modify or reduce a sentence at any time during a term of
131 Id. (alteration in original) (quoting Miller , 482 U.S. 423, 430 (1987)).
132 Id. at 416 (alteration in original) (quoting Cal. Dep't of Corr. v. Morales ,
514 U.S. 499, 506-07 n.3 (1995)).
133 Morales , 514 U.S. at 501, 514.
134 Amin , 939 P.2d at 416-17.
135 39 P.3d 522, 523-24 (Alaska App. 2002).
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imprisonment if it finds that conditions or circumstances have changed since the
original sentencing hearing such that the purpose of the original sentence is not being
fulfilled."136 But a later amendment limited the defendant's time to apply for such a
modification to "within 180 days of the original sentencing."137 The court of appeals
held that this amendment was procedural rather than substantive, reasoning that rather
than creating, defining, or regulating rights, it merely "prescribe[d] the method of
enforcing rights" by "designat[ing] the requisite time period within which to file an
application [for sentence modification]."138 And because the amendment was
procedural, its retroactive application to Stoneking did not violate the ex post facto
139
clause.
We recognize that the 2013 legislative amendments at issue in this case
- eliminating mitigators that after Collins I could have been used to support a referral
to the three-judge sentencing panel, with the attendant possibility of reduced
punishment - do not exactly parallel the procedural changes addressed in Amin and
Stoneking.140 The court of appeals did not consider this issue in the context of its
136 Id. at 523 (quoting former AS 12.55.088(a) (1978)).
137 Id. (quoting former AS 12.55.088(a) (1995)).
138 Id. at 524.
139 Id.
140 Some courts have held that applying new legislation that adds aggravators
or eliminates mitigators may violate the ex post facto clause. See United States v. Higgs,
353 F.3d 281, 301 (4th Cir. 2003) ("[W]e agree that the government cannot solely rely
upon 'multiple killings' as a statutory aggravating factor for a crime committed before
its adoption without violating the Ex Post Facto Clause."); State v. Correll, 715 P.2d
721, 735 (Ariz. 1986) (holding that sentencing court's application of "new aggravating
circumstance to murders which occurred before the effective date of this aggravating
circumstance [amendment]" was barred by ex post facto clause); cf. Staael v. State, 697
P.2d 1050, 1052 (Alaska App. 1985) (noting trial judge's decision that mitigator
recently repealed by legislature "could not be eliminated [from consideration on
sentencing] ex post facto").
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relevant precedent because of its determination that the 2013 legislation was clarifying
and did not implicate the ex post facto clause for that reason. On remand the court of
appeals should decide whether the substantive/procedural distinction described in its
prior case law is determinative in Collins's case.
CONCLUSION
We REVERSE Collins II and REMAND Collins's case to the court of
appeals for further proceedings consistent with this opinion.
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