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Wooley v. State (5/18/2007) ap-2098

Wooley v. State (5/18/2007) ap-2098

     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-9335
Appellant, ) Trial Court No. 3AN-04-4586 Civ
v. )
) O P I N I O N
Appellee. ) No. 2098 May 18, 2007
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Anchorage,  Larry  D.  Card,

          Appearances:  Colleen A. Libbey,  Libbey  Law
          Offices, Anchorage, for the Appellant.   Anne
          D.  Carpeneti,  Assistant  Attorney  General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  David W.  M rquez,  Attorney
          General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          In  2002,  Edward  A.  Wooley stole  a  jigsaw  from  a
hardware  store.   The saw was valued at $289, so  Wooleys  crime
would  normally  be third-degree theft (i.e., theft  of  property
valued  at  less than $500).1  However, under AS 11.46.130(a)(6),
such  a  theft is elevated to second-degree theft if  within  the
preceding  five  years, the [defendant] has  been  convicted  and
sentenced [for first-, second-, or third-degree theft] on two  or
more separate occasions.
          The State alleged that Wooley had two prior convictions
for  second-degree theft  and that, accordingly, Wooleys  act  of
stealing  the  jigsaw  constituted second-degree  theft.   Wooley
ultimately reached a plea bargain with the State; under the terms
of this bargain, Wooley pleaded no contest to second-degree theft
in exchange for the States dismissal of other pending charges.
          However,  approximately 18 months  later,  Wooley  (now
represented  by  a  new  attorney) filed  a  petition  for  post-
conviction  relief  in which he asserted that  his  second-degree
theft conviction was unlawful because his prior theft convictions
were   too   old   to   qualify  for   consideration   under   AS
11.46.130(a)(6).   The superior court denied relief,  and  Wooley
now appeals to this Court.
          Wooleys  attack  on his second-degree theft  conviction
hinges on an ambiguity in the language of subsection 130(a)(6).
          As  explained above, this subsection declares that  the
theft of property valued at less than $500 is second-degree theft
if  within  the  preceding five years, the [defendant]  has  been
convicted  and  sentenced  for first-, second-,  or  third-degree
theft  at  least twice.  The question is whether a prior  offense
should be deemed to be within the preceding five years if (1) the
defendant  was  sentenced for the prior offense within  the  five
years preceding the defendants commission of the current offense,
but (2) the finding of guilt (either the jurys return of a guilty
verdict, or the courts acceptance of the defendants guilty  plea)
occurred  more  than  five years before  the  commission  of  the
current offense.
          For  the  reasons  explained  here,  we  conclude  that
subsection  130(a)(6)  refers  to  the  date  of  the  defendants
sentencing for the prior offense.
          The  pertinent  facts  of  Wooleys  case  are  easy  to
          Wooley stole the jigsaw on February 12, 2002.  At  that
time,  Wooley  had  been  convicted  of  theft  on  two  previous
occasions.  On December 20, 1996, Wooley pleaded guilty to second-
degree theft in case number 3PA-96-2379 Cr.  Five weeks later, on
January  24, 1997, while Wooley was awaiting sentencing  in  that
case,  he pleaded guilty to another second-degree theft  in  case
number  3PA-96-1989 Cr.  Wooley was sentenced for both  of  these
offenses on March 28, 1997.
          Thus, Wooley was sentenced for both of his prior thefts
within  the  five years preceding his commission of  the  current
theft  on  February  12, 2002.  However, the dates  on  which  he
entered  his  pleas  to  these offenses  December  20,  1996  and
January 24, 1997  are beyond the five-year window.
          Subsection  130(a)(6) declares that an  act  of  third-
degree  theft  is raised to second-degree theft if the  defendant
has  been  convicted and sentenced for qualifying theft  offenses
within the preceding five years.  Wooley argues that, because the
legislature  used both convicted and sentenced in  this  statute,
the  legislature must have been referring to two separate events:
(1)  the finding of guilt (i.e., the courts acceptance of  either
the jurys verdict or the defendants plea), and (2) the imposition
of  sentence.  According to Wooley, the legislature  intended  to
require  proof  that  both of these events  occurred  within  the
preceding five years.
          Wooley  relies  particularly on the  following  passage
from  this Courts decision in Brant v. State, 992 P.2d  590,  592
(Alaska App. 1999):
     The   legislature   frequently   defines
crimes in our criminal code on the basis of a
defendants criminal history.  In some crimes,
the  legislature defines the crime to require
not  only  that the defendant has  been  both
convicted,  but that the defendant  has  been
convicted  and  sentenced.  [Footnote  citing
the second- and third-degree theft statutes.]
Thus,  the  legislature, in  at  least  those
crimes  just  noted,  regarded  a  defendants
status as sentenced as a separate fact to  be
proven  along with the defendants  status  of

Based  on  this  passage from  Brant,  Wooley
argues  that  this Court should now  formally
adopt     the    interpretation     of     AS
11.46.130(a)(6) that we implicitly adopted in
          But  this excerpt from Brant is not
the language of the Court.  Rather, it is the
language of the individual judge who authored
the  main  opinion.  Brant was  a  two-to-one
decision,  with the present author concurring
and  Chief Judge Coats dissenting.  Moreover,
the  concurring  opinion  expressly  declares
that  it  is  based  on  a  differ[ent]   ...
approach   to   the  question  of   statutory
interpretation from the one presented in  the
lead opinion.  In other words, the portion of
Brant that Wooley relies on  the passage that
purports   to  interpret  AS  11.46.130(a)(6)
represented  the view of only one  member  of
this Court.
          Now  that we are squarely presented
with   the   issue   of  how   to   interpret
AS  11.46.130(a)(6), we  conclude  that  this
statute  should be interpreted in  accordance
with the longstanding principle of Alaska law
that,   when   a  statute  imposes   enhanced
punishment for repeat offenders, a defendants
status  as  a repeat offender hinges  on  the
date of the defendants sentencing rather than
the   date  on  which  the  jury  found   the
defendant  guilty or the court  accepted  the
defendants guilty plea.
          See  State v. Carlson, 560 P.2d 26,
30  (Alaska 1977) (interpreting the  habitual
criminal  statutes that were in force  before
the  enactment  of  Alaskas current  criminal
code to require proof that the defendant  was
sentenced  for the prior offense  before  the
defendant  committed  the  present  offense);
Gonzales v. State, 582 P.2d 630, 636  (Alaska
1978)   (applying  this  same  rule  to   the
provisions  imposing enhanced punishment  for
repeat  drug offenders); State v. Rastopsoff,
659  P.2d 630, 640-41 (Alaska App. 1983), and
Sawyer  v.  State, 663 P.2d 230, 232  (Alaska
App.  1983)  (holding that, for  purposes  of
determining a defendants status under Alaskas
presumptive  sentencing laws, a defendant  is
not  previously convicted of a felony  unless
the  defendant  has been sentenced  for  that
felony);  Smith v. State, 83 P.3d  12,  15-16
(Alaska App. 2004) (applying the same rule to
an out-of-state felony even though, under the
law  of  that  other state, the felony  would
have been counted as a prior conviction).
          As we explained in Smith,

[prior    Alaska   cases   on   this   point]
demonstrate   an  important  presumption   of
Alaska law:  before a defendants sentence can
be  enhanced  based on a prior  offense,  the
government  ordinarily must  prove  that  the
defendant was judicially confronted with  his
prior misconduct and was given an opportunity
for    reformation   before   the   defendant
committed the current offense.

Smith, 83 P.3d at 16.
          This principle of law does not,  by
itself, dispose of Wooleys argument.   It  is
still conceivable that the legislature wanted
to  require  the  State  to  prove  that  the
defendants   sentencing  and  the  underlying
finding  of  guilt both occurred  within  the
previous  five  years.  But  Wooley  has  not
suggested  a  plausible  rationale  for  this
proposed interpretation of the statute.  That
is,  Wooley  has  not suggested  a  plausible
reason why, in cases where a defendants prior
sentencings  occurred  within  the  preceding
five    years,    the    legislature    would
additionally insist on proof that  the  jurys
verdicts,  or  the defendants  guilty  pleas,
were  also entered within the preceding  five
          As   we  explained  in  Smith,  the
underlying  rationale for  imposing  enhanced
punishment  on repeat offenders is  the  idea
that  a  person is more blameworthy  if  they
return   to   crime  after  being  judicially
confronted with [their] prior misconduct  and
...  given  an  opportunity for  reformation.
The    judicial   confrontation    and    the
opportunity  for reformation  occur  at  (and
following) the defendants sentencing.
          True,  one might argue that a jurys
return of its verdict or a defendants act  of
pleading  guilty constitute events  in  which
defendants confront their wrongdoing in  some
fashion.  But the judicial confrontation that
we  talked  about in Smith is the  sentencing
hearing    the  hearing  in  which  a   judge
publicly  assesses  the  defendants  criminal
conduct,   the   defendants   history,    the
defendants   degree   of   blame,   and   the
defendants    chances   for   rehabilitation.
Likewise,   a   defendants  opportunity   for
reformation  occurs  at  the  close  of   the
sentencing hearing, not when the jury returns
its  verdict  or the defendant  first  enters
their guilty plea.
          For these reasons, we conclude that
the  date  of a defendants sentencing  for  a
prior  offense  is the date  that  determines
whether  that prior offense falls within  the
five-year   time  period  specified   in   AS
          The judgement of the superior court

     1AS 11.46.140(a)(1).

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