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Sweezey v. State (8/31/2007) ap-2118

Sweezey v. State (8/31/2007) ap-2118

     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-9749
Appellant, ) Trial Court No. 3AN-05-7253 CR
v. )
Appellee. )
) No. 2118 August 31, 2007

          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Eric  A.  Aarseth,

          Appearances:   Carmen  E.  Clark,  Ingaldson,
          Maassen  &  Fitzgerald, P.C., Anchorage,  for
          the Appellant.  Diane L. Wendlandt, Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

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

          STEWART, Judge.
          In  August  2005, the Anchorage police went to  Valerie
Sweezeys  home because of a complaint that someone was trying  to
set  the  home  on  fire.  The police found Sweezey  disoriented,
irrational,  and  apparently  under  the  influence   of   drugs.
Eventually,  Sweezey admitted possessing 1.91  grams  of  cocaine
that  the  police found in the house.  Sweezey was  charged  with
fourth-degree misconduct involving a controlled substance.1
          Sweezey   pleaded  no  contest.   She   asserted   that
statutory   mitigating   factor  AS   12.55.155(d)(14)   (Sweezey
possessed  a  small amount of cocaine) applied.2    Sweezey  also
rejected  probation because she believed, in part, that probation
would require a drastic change in her lifestyle.
          Superior  Court  Judge Eric A. Aarseth found  that  the
proposed  mitigating  factor had not been proven.   He  concluded
that  a  suspended  imposition of sentence was most  appropriate,
rejected Sweezeys attempt to refuse probation, and imposed  a  3-
year probationary period.  He required that Sweezey serve 60 days
imprisonment as a condition of probation, and granted her  Nygren
credit3  for  the  inpatient treatment  she  had  attended  as  a
condition of her pre-trial release.  Sweezey appeals.
          Sweezey  argues that Judge Aarseth erroneously rejected
the  proposed  mitigating factor.  This argument fails.   Because
Sweezey  was a first felony offender, Sweezey faced a presumptive
range  of 0 to 2 years imprisonment.4  Judge Aarseth could impose
a  sentence  at  the lowest end of this range without  regard  to
whether Sweezey had proven the mitigating factor.  Thus, Sweezeys
objection is moot.5
          Next,  we address Sweezeys contention that the superior
court  improperly  imposed  probation  after  she  rejected  that
sentencing  option.  A defendants option to reject probation  has
been  recognized for over thirty years starting with  the  Alaska
Supreme  Courts decision in Brown v. State.6  The  supreme  court
noted  that  under the Alaska statutes governing  probation,  the
defendant  can  refuse  probation  if  he  deems  the  terms  too
onerous.7   We  have  recognized the supreme courts  analysis  in
several reported cases.8
          Because  a  defendant  retains  the  option  to  reject
probation  under  this  construction  of  the  statutes,  when  a
defendant accepts probation conditions announced by the court, we
analyze  the  probation  conditions  as  analogous  to  contracts
between the court and the defendant.9
          The  State urges us to turn from this jurisprudence and
rule  that  a  defendant  does  not  have  the  right  to  reject
probation.    The  States  brief  cites  decisions   from   other
jurisdictions that adopt this position.  But the principle that a
defendant  may reject probation in Alaska arose from the  supreme
courts analysis of the probation statutes.  In the decades  since
that   decision,  the  supreme  court  has  not  questioned  that
analysis.   And  the  State  has not  cited  any  action  by  the
legislature  to change the statutes to eliminate that  principle.
Moreover,  as  an intermediate appellate court, we are  bound  to
follow the decisions of the Alaska Supreme Court.10
          A  decision  that  overturns  settled  law  necessarily
undercuts the value of stare decisis.  Even if we were not  bound
by  a decision of the Alaska Supreme Court, the State asks us  to
overturn  a  line of authority developed in this Court.   As  the
Alaska  Supreme  Court  recognizes,  a  party  raising  a   claim
          controlled by an existing decision bears a heavy threshold burden
of showing compelling reasons for reconsidering the prior ruling:
We  will  overrule  a prior decision only when clearly  convinced
that  the  rule  was originally erroneous or is no  longer  sound
because of changed conditions, and that more good than harm would
result from a departure from precedent.11   The State has not met
that  burden  because  the State has not convinced  us  that  the
supreme  courts original analysis of the probation  statutes  was
erroneous or is unsound because of changed conditions.
          Therefore,  we refuse the States invitation  to  reject
the  supreme courts decision in Brown and overturn the clear line
of authority that permits Sweezey to reject probation.
          Because  the  superior  court imposed  probation  after
Sweezey  rejected that  option, we must vacate Sweezeys  sentence
and  remand  the case for resentencing.  Whatever the  wisdom  of
Sweezeys choice to reject probation, that is her option.
          Sweezey  further  argues that comments  made  by  Judge
Aarseth indicate that he would have imposed an excessive term  to
serve  if he had allowed her to reject probation.  This issue  is
not  ripe for consideration because Judge Aarseth did not  impose
that term.

          Sweezeys  sentence is VACATED.  We REMAND the  case  to
the   superior  court  for  resentencing.   We  do   not   retain
     1 AS 11.71.040(a)(3)(A).

       2   This   mitigating   factor  was   renumbered   as   AS
12.55.155(d)(13) in the 2006 version of the Alaska Statutes.

      3 See Nygren v. State, 658 P.2d 141, 146 (Alaska App. 1983)
(holding  that a defendant is entitled to credit for time  served
while  released  on  bail  if  the  defendant  is  subjected   to
restrictions  approximating  those  experienced  by  one  who  is

     4 AS 11.71.040(d) and AS 12.55.125(e)(1).

      5  See Allen v. State, 56 P.3d 683, 685 (Alaska App.  2002)
(holding  that  a  challenge  to  a  judges  findings  concerning
contested  aggravating and mitigating factors is  moot  when  the
judges authority to impose a particular sentence does not rest on
the  judges  findings  concerning the aggravating  or  mitigating
factors).   See  also Krack v. State, 973 P.2d 100,  104  (Alaska
App. 1999).

     6 559 P.2d 107 (Alaska 1977).

     7 Id. at 111 n.13.

      8 See  Hurd v. State, 107 P.3d 314, 333 (Alaska App. 2005);
State v. Auliye,  57 P.3d 711, 717 (Alaska App. 2002); Joubert v.
State,  926 P.2d 1191, 1193 (Alaska App. 1996); Bland  v.  State,
846  P.2d 815, 818 (Alaska App. 1993); State v. Staael, 807  P.2d
513,  516 (Alaska App. 1991); Alfred v. State, 758 P.2d 130,  131
(Alaska App. 1988).

     9 See Hurd, 107 P.3d at 333; Auliye, 57 P.3d at 717.

     10 See Smart v. State, 146 P.3d 15, 28 (Alaska App. 2006).

     11 Thomas v. Anchorage Equal Rights Commn, 102 P.3d 937, 943
(Alaska  2004)  (quoting Alaska Commercial Fisheries Entry  Commn
v.  Carlson,  65 P.3d 851, 859 (Alaska 2003) (internal  quotation
marks omitted)).

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