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Netling v. State (10/13/2006) ap-2065

Netling v. State (10/13/2006) ap-2065

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

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) Court of Appeals No. A-9334
Appellant, ) Trial Court No. 1KE-04-1271 Cr
v. )
) O P I N I O N
Appellee. ) No. 2065 October 13, 2006
          Appeal  from the Superior Court,  First  Judi
          cial   District,   Ketchikan,   Michael    A.
          Thompson, Judge.

          Appearances:   Michael P. Heiser,  Ketchikan,
          for  the  Appellant.  James Scott,  Assistant
          District Attorney, and Stephen West, District
          Attorney,  Ketchikan, and David  W.  M rquez,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          William  R.  Netling  pleaded guilty  to  second-degree
controlled substance misconduct (manufacturing methamphetamine).1
Netling had a prior conviction for distributing cocaine, but that
prior  conviction  was  old enough that  it  did  not  count  for
presumptive  sentencing purposes.2  Thus,  Netling  was  a  first
felony  offender for presumptive sentencing purposes, and he  was
subject to a 5-year presumptive term for his current offense.3
          At   his  sentencing  hearing,  Netling  proposed  four
mitigating  factors  under AS 12.55.155(d).   Any  one  of  these
          mitigators, if proved, would have authorized the superior court
to  reduce Netlings sentence by up to fifty percent of the 5-year
presumptive  term.4   However, Superior Court  Judge  Michael  A.
Thompson rejected all of Netlings proposed mitigators.   He  then
sentenced Netling to the 5-year presumptive term.
          Netling now appeals the superior courts rulings on  two
of these proposed mitigators:  (d)(13) and (d)(9).
          Mitigator  (d)(13)   which  has  been  re-numbered   as
(d)(12)  in the current version of the statute  applies when  the
harm  caused  by  the defendants conduct, both in the  defendants
current  offense and in any past offenses, has been  consistently
minor  and  inconsistent with a substantial term of imprisonment.
Judge  Thompson declared that, given the facts of Netlings  case,
mitigator  (d)(13)  was  a  close[]  call.   Nevertheless,  Judge
Thompson rejected mitigator (d)(13).
          In  his  ruling, Judge Thompson relied not only on  the
danger  posed by methamphetamine itself, but also on the physical
danger posed by the manufacturing process:
     The  Court:  [M]ethamphetamine labs  ...
pose  a  hazard  [apart] from their  intended
purpose.  ...  [Although] nobody builds these
things with the intent [that] theyre going to
blow  up  or cause a fire, ... if we pick  up
the   newspapers,  at  least  in  our   major
communities,  [we see that this]  is  exactly
whats  happening.  These [labs] are not  only
[putting] methamphetamines into the stream of
illicit commerce, but [they are] actually ...
mak[ing]  people  sick and  [they]  sometimes
burn  people up.  ...  [T]he lab itself is  a

          Netling  argues that Judge Thompson
was   wrong  to  reject  mitigator   (d)(13).
Netling  points out that he was manufacturing
methamphetamine  on  only  a   small   scale.
Netling  also  points  out  that  the   State
presented   no  evidence  that  Netling   had
engaged in numerous sales of methamphetamine,
or  that  anyone had overdosed  or  otherwise
become  seriously ill as a result of Netlings
          But as this Court explained in Ison
v.  State,  941 P.2d 195 (Alaska App.  1997),
certain crimes are serious enough that [they]
are  normally thought to justify  substantial
imprisonment even though they may involve  no
injury at all:

Many   crimes   from  attempted  murder   and
robbery   to   bribery  and   driving   while
intoxicated  do not require proof of physical
injury  or  actual harm to  property.   These
offenses  are punished because of  the  risks
they  create,  and  because  of  the  serious
disruption of the social fabric they  entail.
Such  risks  and disruptions  are  harms  for
purposes of the criminal law:

     [The  criminal law deals with the]  harm
     which results from human conduct  social
     harm.   With reference to this term,  it
     [should]   be  mentioned  that   it   is
     socially harmful not only to have a  man
     murdered,   a   dwelling   burglariously
     invaded, or property stolen, but also to
     have   a   conspiracy  formed   in   the
     community,  to  have one member  thereof
     challenge another to a duel, or offer to
     bribe   an  officer.   In  these  latter
     instances, let it be emphasized,  it  is
     socially harmful to have such influences
     abroad  in  the community  even  if  the
     criminal  purpose of the  conspiracy  is
     not  achieved, the challenge is refused,
     and the bribe rejected.

R.  Perkins & R. Boyce, Criminal Law (3rd ed.
1982), p. 11.

     For   these  reasons,  we  reject  [the]
contention that mitigator (d)(13) speaks only
to  physical  harm  to persons  or  property.
Instead,  ...  [w]hen  a  defendant  proposes
mitigator (d)(13)[,] the sentencing court can
take  into  account  not  only  the  physical
injury and harm to property inflicted by  the
defendant,  but also the relative seriousness
of  the  defendants conduct and the  risk  of
harm posed by the defendants conduct.

Ison, 941 P.2d at 198.
          It   is  evident  that  the  Alaska
Legislature   views  methamphetamine   as   a
particularly   dangerous   drug,   and    the
manufacture of methamphetamine as  a  serious
offense.   Even though methamphetamine  is  a
Schedule   IIA  controlled  substance,5   the
legislature  has enacted a special  provision
of   law   to   punish  the  manufacture   of
methamphetamine   more  severely   than   the
manufacture of other Schedule IIA  controlled
substances.  Generally, the manufacture of  a
Schedule  IIA controlled substance is  third-
degree  controlled  substance  misconduct,  a
class B felony.  See AS 11.71.030(a)(1).   In
contrast,  the manufacture of methamphetamine
is    second-degree   controlled    substance
misconduct,  a  class  A  felony.    See   AS
          Netling   does  not  dispute   that
methamphetamine  is a particularly  dangerous
drug,  nor does Netling dispute the  accuracy
of  Judge Thompsons remarks about the dangers
of the methamphetamine manufacturing process.
This   being  so,  Judge  Thompson  was   not
required  to  find mitigator  (d)(13)  simply
because     Netling     was     manufacturing
methamphetamine  on  a small  scale  and  his
activities had never caused physical harm  to
          We  now  turn  to mitigator  (d)(9)
which  has been re-numbered as (d)(8) in  the
current   version   of  the   statute:    the
assertion that Netlings conduct was among the
least  serious within the definition  of  the
offense.  Netling argued that his conduct was
among  the  least  serious  because  he  only
manufactured  methamphetamine  on  a  limited
scale.    Judge   Thompson   rejected    this
mitigator for the following reasons:

     The    Court:    Manufacture   of   this
[substance],  even  on  a  small  scale,   is
normally, I think, most of us would  consider
well,  I  wouldnt say [that it was] the  most
serious,  necessarily.  I  guess  that  would
depend    on   how   much   a   person    was
manufacturing.  But the allegation is that he
was actually making the stuff  and would,  if
he   applied  himself  to  it,  be  able   to
manufacture  far  more, presumably,  than  he
could  personally use ... .  So it  would  be
hard   I  cant  I think it would be  quite  a
stretch  and I cant say that I would consider
this  the  least  serious  conduct  that  the
legislature  intended to prohibit  with  this

          Judge    Thompsons   remarks    are
problematic.  His first and second  sentences
suggest  that  he  rejected mitigator  (d)(9)
because   he   believed  that  the   act   of
manufacturing methamphetamine, in any amount,
could not qualify as among the least serious.
If so, this was error.
          As   we  pointed  out  above,   the
legislature has classified the manufacture of
methamphetamine  as  a more  serious  offense
than  the  manufacture of other Schedule  IIA
controlled   substances.    Generally,    the
manufacture  of  a  Schedule  IIA  controlled
substance  is  a  class  B  felony,  but  the
manufacture of methamphetamine is a  class  A
          But     precisely    because    the
manufacture of methamphetamine constitutes  a
separate, higher degree of offense  than  the
manufacture of other Schedule IIA  controlled
substances,  a  superior court  would  commit
error by rejecting mitigator (d)(9) simply on
the  basis that methamphetamine is among  the
most dangerous drugs, or that the manufacture
of  methamphetamine is among the most serious
social problems.  These are the factors  that
presumably   motivated  the  legislature   to
punish the manufacture of methamphetamine  as
a  class  A  felony rather  than  a  class  B
felony.   The  question  posed  by  mitigator
(d)(9)  is  whether,  within  the  range   of
methamphetamine manufacturing, the defendants
conduct was among the least serious.
          Judge  Thompsons third sentence  is
also  problematic.  In this  sentence,  Judge
Thompson appears to say that Netlings conduct
was  not among the least serious because,  if
Netling  had  wanted to, and if  Netling  had
applied    himself,   Netling   could    have
manufactured far more methamphetamine than he
actually did.  This fact would be significant
if  there  were any indication  that  Netling
actually intended to engage in manufacture on
a  far larger scale in the future.  But Judge
Thompson  made no such finding.  Rather,  his
remark  suggests  the paradoxical  conclusion
that  Netlings  conduct was more  blameworthy
because Netling chose not to utilize the full
extent of his manufacturing capability.
          For  these reasons, we vacate Judge
Thompsons ruling on mitigator (d)(9), and  we
direct  him  to  reconsider  this  mitigator.
Judge  Thompson may, in his discretion,  hear
further argument on this proposed mitigator.
          If Judge Thompson rules in Netlings
favor on this mitigator, he may proceed to re-
sentence Netling.  Netling will then have  30
days  to  appeal this sentence if he  wishes.
See Appellate Rule 215(c).  If Judge Thompson
again  rejects  the proposed mitigator,  this
present appeal will continue.
          Within  90  days of  this  opinion,
Judge  Thompson shall transmit his ruling  on
mitigator  (d)(9) to this  Court.   If  Judge
Thompson  again  rules against  Netling,  the
parties   shall   have  30   days   to   file
simultaneous      supplemental      memoranda
addressing the judges ruling.  When  we  have
received  the supplemental memoranda  of  the
parties, we shall renew our consideration  of
this issue.
          We   retain  jurisdiction  of  this

     1AS 11.71.020(a)(2)(A).

     2See AS 12.55.145(a)(1)(A).

     3AS 12.55.125(c)(1) (pre-March 2005 version).

4See AS 12.55.155(a)(2) (pre-March 2005 version).

5AS 11.71.150(e)(2).

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