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Hunter v. State (5/9/2008) ap-2168

Hunter v. State (5/9/2008) ap-2168

     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-8868
Appellant, ) Trial Court No. 3AN-02-2916 CR
v. )
) O P I N I O N
Appellee. )
) No. 2168 May 9, 2008
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Philip R. Volland,

          Appearances:   Allan  Beiswenger,  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.
          MANNHEIMER, Judge, concurring.
          In  an earlier decision in this case, we affirmed  John
N.  Hunters  convictions for five counts of  first-degree  sexual
assault  and several counts of robbery and assault in  connection
with  the  sexual assaults.1  Hunter also challenged his  95-year
composite  sentence for these crimes, but we did not resolve  his
sentence  appeal.  Instead, we remanded the case to the  superior
court for resentencing because we found plain error in one aspect
of  sentencing.2  The error occurred because the  superior  court
sentenced  Hunter  as  a  third felony offender  on  all  of  the
counts.3    Because  of  the  timing  of  Hunters  prior   felony
convictions, Hunter should have been sentenced as a second felony
offender for one of the counts of first-degree robbery and one of
the  counts  of  first-degree sexual assault.4   Accordingly,  we
vacated  the  sentence  imposed for  those  two  convictions  and
remanded for re-sentencing.5
          The  superior  court  has  now resentenced  Hunter  and
imposed the same 95-year composite term for five counts of first-
degree  sexual assault, two counts of first-degree  robbery,  one
count  of  third-degree  assault and one count  of  second-degree
          Hunter  argues  that  the superior court  violated  the
double  jeopardy clause when it imposed the same  composite  term
that  was  originally imposed.  We reject this claim because  the
superior  court  was authorized to impose a composite  term  that
reflected the totality of Hunters misconduct.  The superior court
imposed  the  composite term by running the presumptive  sentence
for each individual count consecutively or concurrently, in whole
or  in  part,  with other counts.  We conclude that the  superior
courts  imposition of the applicable presumptive  term  for  each
count  on resentencing, together with its specification of  which
portion   of   the  applicable  presumptive  term   was   imposed
consecutively or concurrently with other counts, did not  violate
double jeopardy.
          In  addition,  Hunter again claims that  his  composite
term  is  excessive.  Because we conclude that Hunters  composite
term  for all his convictions is not clearly mistaken, we  affirm
Hunters sentence.2

          Facts and proceedings
          Hunter was convicted of offenses related to his attacks
on  five women over the course of more than five years.  The five
attacks included a December 1996 assault on M.N., an August  1997
assault on J.J., a December 1998 assault on R.S., a January  2001
assault  on J.V., and a January 2002 assault on L.A. We discussed
the facts of these incidents in our earlier decision.3
          Hunter  had three prior felony convictions when he  was
sentenced.   He  had a 1981 California armed robbery  conviction.
Second,  he  had  a  1983  Indiana rape conviction.  (Hunter  was
unconditionally   discharged  from  these  two   convictions   on
September  28,  1988.)  Third, Hunter had an  April  2000  Alaska
conviction for felony driving while intoxicated.  Because of  the
timing  of Hunters prior felony convictions, Hunter faced  a  25-
year  presumptive  term  for four counts of  first-degree  sexual
assault4  and a 15-year presumptive term for the remaining  count
of  first-degree sexual assault5; a 15-year presumptive term  for
one  first-degree  robbery count6 and a 10-year presumptive  term
for   the  second  count  of  first-degree  robbery7;  a   3-year
          presumptive term on the third-degree assault charge8; and a 6-
year presumptive term on the second-degree assault charge.9
          On  the five first-degree sexual assault counts,  Judge
Volland imposed the presumptive term of 25 years imprisonment for
Counts  I,  II, IV, and V and the presumptive term  of  15  years
imprisonment for Count III.  He decided that 17 years  of  Counts
II,  IV,  and  V would run consecutively to Count I and  to  each
other.  He also decided that the entire 15-year presumptive  term
for  Count  III would run consecutively to all the other  counts.
Judge  Volland imposed a 15-year presumptive term for the  first-
degree  robbery charge in Count VII with that term to  be  served
concurrently with the sexual assault terms.  He imposed a 10-year
presumptive term for the first-degree robbery in Count VI, with 2
years consecutive to Counts I-V and the rest concurrent.  He also
sentenced Hunter to a presumptive 3-year term on the third-degree
assault  charge (Count IX) with 6 months of that term consecutive
to all previous counts.  Finally, he imposed a presumptive 6-year
term  on  the  second-degree assault charge (Count  X),  with  18
months  to be served consecutively to the previous counts.   This
resulted in a composite term of 95 years to serve.10

          In  our  earlier decision, we did not address  all  the
issues   Hunter  raised  because  we  remanded   the   case   for
resentencing.  We now address the remaining claims in the case.
          Hunter  argued that Judge Volland improperly speculated
that  Hunter  had committed additional uncharged sexual  assaults
when  he  sentenced Hunter.  Such speculation would  violate  the
decision  in  Donlun v. State.11   In Donlun, the  supreme  court
held  that a sentencing court erred when it speculated  that  the
defendant  had  committed other uncharged crimes,  and  that  the
charged  crime was simply the first time the defendant  had  been
          We  discussed  but did not resolve this  issue  in  our
earlier decision.  Because we remanded the case for resentencing,
we  indicated that Judge Volland could enter additional  findings
addressing  this issue.  On remand, Judge Volland  clarified  the
record by indicating he placed no reliance on the potential  that
Hunter had other unknown victims.  With this clarification, it is
now  explicitly  clear that Judge Volland did  not  rely  on  the
potential that Hunter had other unknown victims.  Accordingly, we
reject this claim.
          Next, Hunter argues that on resentencing, Judge Volland
violated  double  jeopardy by imposing 2  years  of  the  10-year
presumptive term imposed for Count VI consecutive to  the  sexual
assault   counts  because  he  originally  imposed   the   entire
presumptive term for this count concurrently.  Hunter  relies  on
Loola  v.  State.13  Loola was convicted of one count of  assault
with  a  dangerous  weapon and one count  of  aggravated  assault
arising  out of a single incident.14  The superior court  imposed
sentence  on  both  counts, 10 years with 5 years  suspended  for
assault  with a dangerous weapon and a consecutive  5  years  for
aggravated assault.15  The State conceded that the counts  should
have  merged  under  our supreme courts decision  in  Whitton  v.
          In Whitton, the court held that even though a defendant
is  found  guilty  of  violating two separate  criminal  statutes
arising  out of one criminal episode, double jeopardy requires  a
sentencing  court to impose only one conviction and one  sentence
if  the  two  crimes  are so closely related that  there  are  no
significant  differences between the conduct proscribed  and  the
societal  values protected by each statute.17  The supreme  court
ruled  that  because Loola had not appealed the sentence  imposed
for assault with a dangerous weapon, the superior court could not
increase  the sentence originally imposed for that single  count,
the  only  count on which the superior court was constitutionally
authorized to impose sentence.18
          That  is not the case here.  The jury convicted  Hunter
of  nine  counts  arising out of five separate  attacks  on  five
different  women.  (Hunter has not argued that any of those  nine
counts merge under Whitton.)  In sentencing Hunter, Judge Volland
understood  that he had the authority to impose  over  200  years
imprisonment if he imposed consecutive maximum sentences for  all
nine  counts.  And he understood that Hunters composite  sentence
would   exceed  100  years  imprisonment  if  the  judge  imposed
consecutive   unadjusted  presumptive   terms.    Judge   Volland
understood  that the sentence he imposed would result  in  Hunter
remaining  in  prison for the rest of his life.  After  reviewing
sentencing   decisions  addressing  long  composite   terms   for
offenders who were comparable to Hunter, Judge Volland elected to
impose  a  95-year  composite  term  after  considering  all  the
sentencing criteria,19 Hunters history, and the crimes for  which
he   was   convicted.   In  the  circumstances  of   this   case,
resentencing Hunter did not violate his double jeopardy rights.20
          The parties did not allege any statutory aggravating or
mitigating  factors, so Judge Volland was required to impose  the
presumptive term for each count.21  Because the presumptive terms
for  the nine counts ranged from 3 to 25 years, there were a vast
number  of ways that Judge Volland could have imposed the  counts
consecutively  and  concurrently to reach the composite  term  he
selected.  At Hunters original sentencing, Judge Volland  reached
95  years by imposing each sexual assault presumptive term wholly
or  partly consecutive to the other sexual assault terms to reach
a  composite 93 years.  He imposed the presumptive terms for  the
assault counts partially consecutive and partially concurrent  to
the  sexual assault counts to impose an additional consecutive  2
years.  The robbery presumptive terms were imposed all concurrent
to the composite sexual assault terms.
          At  Hunters resentencing, Judge Volland reaffirmed  his
analysis  of  Hunters  case and again concluded  that  a  95-year
composite term remained the appropriate sentence.  Judge  Volland
elected  not to change the relationship of the presumptive  terms
he  imposed  for  the seven counts on which Hunter  was  properly
classified as a third felony offender.  He decided to impose  the
presumptive  terms on the two counts on which Hunter  had  to  be
resentenced  as  a second felony offender both consecutively  and
partially  concurrently so that the composite term for those  two
counts,  in  addition  to  the  composite  term  for  the   seven
undisturbed counts, resulted in a 95-year composite term.
            Although Hunter was resentenced, he remains convicted
          of the crimes on which the jury found him guilty.  Judge Vollands
intent  to  fashion the 95-year composite sentence is clear  from
his  remarks, and that term represents the judges analysis of the
appropriate sentence to impose considering the facts of the  case
and  the  sentencing criteria.  Furthermore, unlike the appellant
in  Loola, Hunter did not challenge the constitutionality of  the
superior courts authority to sentence him on any count.  Instead,
Hunter  challenged, as a matter of plain error,  the  presumptive
terms  that resulted from his misclassification as a third felony
offender  and,  unlike  Loola, argued that  his  entire  term  is
excessive.  We conclude that Hunters case is distinguishable from
Loola,  and that Hunters double jeopardy rights were not violated
when   Judge  Volland  imposed  the  same  presumptive  term   at
          We  now turn to Hunters claim that his 95-year term  is
excessive.   Our  review of Alaska sentencing  cases  shows  that
Hunters composite term is the longest (among reported cases)  for
a  case  not  involving a homicide.  Judge Vollands remarks  show
that  he  reviewed reported cases affirming a defendants  lengthy
sentence for sexual assault.
          Several  decisions of this court are  instructive.   In
Schuenemann v. State,22  Ross v. State,23and Adams v. State,24 we
upheld  sentences  that  were virtually  lifetime  sentences  for
mature sexual offenders who demonstrated ingrained and compulsive
criminal histories.
          In  Schuenemann, we upheld a composite 69-year term for
five  counts of first-degree sexual assault, two counts of first-
degree attempted sexual assault, and three counts of first-degree
burglary.25   Schuenemann  was a second  felony  offender.26   In
Ross,  we  upheld,  for  a second felony  offender,  a  composite
sentence  of 84 years to serve for one count of kidnapping,  five
counts   of  first-degree  sexual  assault,  and  one  count   of
second-degree sexual assault.27  In Adams, we upheld a  composite
60-year  term  to  serve  for  a third-felony  offender  who  was
convicted  of  one count of first-degree sexual assault  and  one
count  of kidnapping.28  Also, in State v. Hodari,29 the  supreme
court  upheld  Hodaris composite 55-year term for two  counts  of
first-degree  sexual assault, one count of first-degree  robbery,
and  one  count of second-degree assault.30  Hodari was sentenced
as a second felony offender.31
          Hunter, who was forty-two years old at sentencing, is a
mature offender.  Hunter had three prior felony convictions  when
he   appeared  before  Judge  Volland  for  sentencing.   Hunters
criminal  conduct began as a teenager when he attempted to  force
another  child to engage in sexual penetration.  He was convicted
of  armed  robbery at the age of sixteen.   At seventeen,  Hunter
and  another  individual  broke into  a  residence  and  sexually
assaulted a seventeen-year-old girl.  While he was in custody for
armed robbery, Hunter sexually assaulted another inmate.
          Judge  Volland found that Hunters previous  confinement
had  no effect and that Hunters criminality was ingrained.  These
findings are reinforced by the fact that Hunter committed one  of
the  sexual assaults in this case within twelve hours of a  court
appearance  on  an  unrelated case.   Judge  Volland  found  that
Hunters  prospects for rehabilitation were nil.   He  found  that
          Hunter had to be incarcerated for a substantial period of time to
prevent  harm  to  the  public.  He found that  Hunters  repeated
sexual  assaults reflect conduct by a man undeterred by  frequent
contacts with the criminal justice system and  that Hunter was  a
worst offender.
          In  this  case, Hunter sexually assaulted five victims;
there  was  physical assault and physical injury associated  with
some of the sexual assaults.  Hunters conduct was predatory,  and
his  treatment  of  the  victims was  brutal.   Despite  repeated
contact  with  the  criminal justice  system,  he  has  shown  no
potential for rehabilitation.  His criminal history shows that he
is a persistent and violent offender.32
          The record in this case demonstrates that Judge Volland
reasonably concluded that Hunter is a member of the rare class of
offenders  who  must be incarcerated for the remainder  of  their
life  for the protection of the public.  We conclude that Hunters
sentence is not clearly mistaken.33

          Hunters composite sentence is AFFIRMED.
MANNHEIMER, Judge, concurring.

          I  write  separately to address the  apparent  conflict
between the Alaska Supreme Courts decision in Loola v. State, 608
P.2d 36, 37 (Alaska 1980), and the series of decisions issued  by
this  Court  dealing with the same issue of double jeopardy  law,
beginning  with  Allain v. State, 810 P.2d 1019, 1021-22  (Alaska
App. 1991).
          The problem addressed in Loola and Allain arises when a
trial  court mistakenly enters judgement against a defendant  for
more  separate  offenses than the law allows.  Under  the  double
jeopardy doctrine announced in Whitton v. State,1 there  will  be
times  when two or more guilty verdicts must merge into a  single
criminal  conviction  (and  a single sentence).   Sometimes,  the
sentencing  judge  will recognize the Whitton  problem  and  will
effect  the merger before the final judgement is issued.  But  if
the double jeopardy problem is not perceived, or is not correctly
resolved,  until the case is on appeal, the appellate court  will
have to direct the sentencing court to amend the judgement and to
re-sentence the defendant.
          In such instances, is the sentencing court permitted to
alter the defendants sentences on the remaining offenses so as to
maintain  the defendants original composite term of imprisonment?
Or  does the double jeopardy clause prohibit the sentencing court
from changing the defendants sentences on the remaining counts?
          In  Allain,  810  P.2d at 1021-22, this Court  examined
this  issue  at  some  length and ultimately concluded  that  the
double  jeopardy clause allows a sentencing court  to  alter  the
defendants  sentences on the remaining counts,  so  long  as  the
defendants  new sentences do not exceed the composite  term  that
the defendant originally received.
          The   defendant   in  Allain  received   two   separate
convictions and sentences for sexual abuse of a minor, with  each
conviction based on the same episode of sexual contact.2  On  the
first of these counts, the superior court sentenced Allain  to  3
years  imprisonment with 2 years suspended.  On the second count,
the  superior court sentenced Allain to a consecutive term  of  3
years,  with  all  3  years suspended.  In  other  words,  Allain
received  a composite sentence of 6 years with 5 years  suspended
1 year to serve.3
          On  appeal,  Allain contended that it was improper  for
the  superior  court to enter separate judgements  on  these  two
counts  that the jurys verdicts would support only one conviction
and  one  sentence.  The State conceded error.4  This Court  then
had to decide what remedy was appropriate for this legal error.
          The  State argued that, even though the judgement would
have  to  be amended to reflect only one conviction and sentence,
the  sentencing  [judge] should be authorized  to  impose  a  new
sentence  that does not exceed the composite term  of  six  years
with  five years suspended originally imposed as to Counts I  and
II.5   Allain took the position that any increase in his sentence
on the single count would be barred by the double jeopardy clause
and by the due process clause.6
          After considering this issue, this Court concluded that
the  states  position [is] meritorious and Allains constitutional
          claims [are] unpersuasive.
     As  a  matter  of federal constitutional
law,  it  appears clear that resentencing  on
[the  remaining count] is barred  neither  by
double   jeopardy  nor  by  the  due  process
prohibition  against  vindictiveness.    See,
e.g.,  Pennsylvania v. Goldhammer,  474  U.S.
28,  106  S.Ct. 353, 88 L.Ed.2d  183  (1985);
United States v. Pimienta-Redondo, 874 F.2d 9
(1st Cir. 1989) (en banc).

Allain, 810 P.2d at 1021.
          This  Court recognized that it  was
conceivable    that   the   more    stringent
protections  of Alaskas double  jeopardy  and
due   process  clauses  might  afford  Allain
shelter   against   resentencing   in    some
circumstances, even though resentencing would
not   be   barred   by  the   United   States
Constitution.  But under the circumstances of
Allains  case, we concluded that  the  Alaska
Constitution  did  not  bar  an  increase  in
Allains  remaining  sentence.   We  explained
that  [t]wo  factors [were]  pivotal  to  our

     First, the dismissal of Count I in  this
case  results from its merger with  Count  II
and   does  not  in  any  way  implicate  the
legitimacy of the jurys factual determination
that   Allain  was  guilty  of  the   conduct
originally  charged in Count  I.   Given  the
merger  of  Counts  I and II,  Count  II  now
comprehends  the totality of the conduct  for
which   Allain   was  originally   sentenced.
Because  the merger of Counts I  and  II  was
precisely  the relief that Allain  sought  in
bringing  this appeal, he cannot be heard  to
complain  that double jeopardy precludes  the
imposition of a new sentence that takes  into
account the expanded scope of the conduct now
included in that count.

Allain, 810 P.2d at 1021-22.

     Second, [Allains sentencing judge]  made
it   abundantly   clear   at   the   original
sentencing  hearing that  he  viewed  Allains
convictions  as essentially a single  episode
of  criminal  misconduct and that,  while  he
elected to use consecutive sentences, his aim
was  to  fashion a composite term appropriate
for  the totality of Allains conduct.   Given
[the judges] remarks, it is apparent that the
judges  selection  of  a partially  suspended
term  on  Count I and a completely  suspended
term  on Count II was wholly fortuitous.   It
is  further  evident that [the judge]  deemed
the  total term of six years with five  years
suspended  to  be  appropriate  as  a   total
sentence, regardless of whether that sentence
was  implemented by means of  consecutive  or
concurrent sentences.

Allain, 810 P.2d at 1022.
          For  these  reasons,  we  concluded
that the superior court was authorized to re-
sentence  Allain  to  a  modified   term   of
imprisonment on the remaining count, so  long
as  that  new  sentence did  not  exceed  the
composite sentence originally imposed.7
          Since that time, we have repeatedly
applied our holding in Allain to other  cases
where  a  defendant  had to  be  re-sentenced
owing  to the merger or dismissal of  one  or
more  of  the  original counts.   See,  e.g.,
Marker  v.  State,  829  P.2d  1191,  1195-97
(Alaska  App. 1992); Ward v. State, 120  P.3d
204,  208-09  (Alaska App.  2005);  Moore  v.
State,  123  P.3d 1081, 1093-94 (Alaska  App.
2005);  Walsh v. State, 134 P.3d 366,  372-73
(Alaska App. 2006); and Billum v. State,  151
P.3d 507, 509-510 (Alaska App. 2006).
          But  there is a problem with Allain
and our ensuing decisions on this issue.  The
problem is that, in Loola v. State, 608  P.2d
at  37, the Alaska Supreme Court reached  the
opposite  decision:   that  is,  the  supreme
court  held that the double jeopardy  clauses
of  both  the federal and state constitutions
forbid any increase in a defendants remaining
sentences  after one or more of the  original
counts are vacated on Whitton grounds.
          The    defendant   in   Loola   was
convicted of two crimes under Alaskas  former
criminal   code   assault  with  a  dangerous
weapon  and  aggravated assault  based  on  a
single  assaultive act.8  For  the  first  of
these   offenses,  Loola  received  10  years
imprisonment with 5 years suspended.  For the
second  offense,  Loola  received  another  5
years     imprisonment,    to    be    served
consecutively.9    In  other   words,   Loola
received  a  composite term of  10  years  to
serve and an additional 5 years suspended.
          Loola filed a sentence appeal,  but
he only appealed his second sentence.  Loolas
opening  brief  was slightly over  two  pages
long,  and it was almost entirely devoted  to
          explaining the facts of his case and then
arguing  that  his two offenses merged  under
Whitton.  In the concluding paragraph of that
brief,   rather  than  asking  for  a  remedy
consistent  with  Whitton   i.e.,  merger  of
these  two  offenses into one conviction  and
sentence   Loola  merely  asked  the  supreme
court to alter the judgement so that his  two
sentences would be served concurrently.   See
Alaska Supreme Court File No. 4858, Loola  v.
State, Opening Brief of the Appellant.
          The  State  filed  a  two-paragraph
brief  in  response.  In the first paragraph,
the  State  conceded  error  on  the  Whitton
issue.   In  the second paragraph, the  State
asked the supreme court to allow the superior
court   to  alter  Loolas  sentence  on   the
remaining count, so that the superior  courts
sentencing  intention  (10  years  to  serve)
could  be  carried out.  See  Alaska  Supreme
Court File No. 4858, Loola v. State, Brief of
the Appellee.
          Loola  then filed a one-page  reply
brief  in  which  he asserted  that  such  an
alteration  of  his remaining sentence  would
violate  the double jeopardy clauses  of  the
federal and state constitutions.  Loola cited
no    authority    in   support    of    this
constitutional argument.  See Alaska  Supreme
Court  File  No. 4858, Loola v. State,  Reply
Brief of the Appellant.
          Despite   the   fact   that    this
constitutional issue was raised for the first
time  in  a  reply  brief   in  other  words,
despite   the   fact  that   there   was   no
adversarial  briefing  of  this  issue    and
despite the fact that Loola provided no  case
law   or  other  authority  to  support   his
assertion  that  it would be unconstitutional
to   increase  his  remaining  sentence,  the
Alaska  Supreme  Court  concluded  that   the
double  jeopardy clauses of the  federal  and
state  constitutions prohibited the  superior
court   from   increasing  Loolas   remaining
sentence.  Loola, 608 P.2d at 37.  The  court
declared that this conclusion was dictated by
the fact that Loola had not appealed both  of
his  sentences,  but rather only  the  second
one.  Id.  Based on this, the court held that
any  increase  in  the  un-appealed  sentence
would be unconstitutional.
          To  the extent that the decision in
Loola  rests  on the federal double  jeopardy
clause,  it  was  wrongly decided.   As  this
Court  noted  in  Allain, the  United  States
Supreme  Court addressed a similar  situation
in  Pennsylvania v. Goldhammer, 474 U.S.  28,
106  S.Ct.  353, 88 L.Ed.2d 183  (1985),  and
concluded  that  the federal double  jeopardy
clause  does not prohibit an increase in  the
defendants remaining sentences.
          The  defendant  in  Goldhammer  was
convicted  of  56 counts of  forgery  and  an
accompanying   56  counts  of   theft.    The
sentencing court imposed a sentence of 2 to 5
years   imprisonment  on  one  of  the  theft
counts,  and imposed 5 years of probation  on
one  of  the forgery counts.  The court  then
suspended   Goldhammers   sentence   on   the
remaining  110  counts.10   On  appeal,   the
appellate   division  of   the   Pennsylvania
superior  court  held that 34  of  the  theft
counts  including the one on which Goldhammer
was  actually sentenced  were barred  by  the
statute  of  limitations.   The  Pennsylvania
Supreme Court later affirmed the dismissal of
the  34  theft counts, and further held  that
the  federal double jeopardy clause  did  not
permit  the trial court to alter any  of  the
suspended sentences that Goldhammer  received
for the other 22 theft counts.11
          In   response  to  the   State   of
Pennsylvanias   petition    for    writ    of
certiorari,  the United States Supreme  Court
summarily  reversed the Pennsylvania  Supreme
Courts  double jeopardy ruling  and  remanded
the  case  to the Pennsylvania courts  for  a
determination  of whether, under  state  law,
the   government  was  allowed  to  seek   an
increase  in  Goldhammers  sentence  on   the
remaining counts.12
          This leaves the question of whether
Alaska law allows or forbids the increase  of
a  defendants  remaining  sentences  in  this
          Leaving  aside  the fact  that  the
constitutional  ruling in  Loola  was  issued
without  the benefit of adversarial briefing,
it  appears  that the decision  in  Loola  is
flawed  in  two  respects.   First,   it   is
inconsistent  with the Alaska Supreme  Courts
Whitton   jurisprudence.    Second,   it   is
inconsistent   with  Alaska   law   governing
sentence  appeals when a defendant  has  been
sentenced for two or more offenses.
          As this Court explained in Erickson
v.  State,  950 P.2d 580 (Alaska App.  1997),
when  a  defendant attacks a  conviction  and
sentence  on Whitton grounds, the  appeal  is
not a sentence appeal in the technical sense.
          In a sentence appeal, the defendant concedes
the  lawfulness of the sentence, but  attacks
its severity.13  In contrast, a defendant who
raises  a Whitton challenge is attacking  the
lawfulness  of  both the conviction  and  the
sentence:  the defendant is arguing that,  as
a  constitutional matter, it was improper  to
enter a separate conviction (much less impose
a   separate  sentence)  for  the  challenged
          Moreover,  when  a  defendant   has
received   two   separate   convictions    in
violation  of Whitton, the proper  remedy  is
not  dismissal of one count in preference  to
the  other.   Rather,  as  we  explained   in
Kailukiak v. State, 959 P.2d 771,  774  n.  1
(Alaska  App.  1998), and again  in  Hurd  v.
State,  107 P.3d 314, 322 (Alaska App. 2005),
the  proper  remedy is a merger  of  the  two
counts  into a single conviction and sentence
based on both verdicts:

[I]t   is   technically   incorrect   for   a
sentencing  court  to  dismiss  a  count   on
Whitton  grounds.   Even  though  the  Alaska
double  jeopardy  clause,  as  construed   in
Whitton,  prevents  a sentencing  court  from
entering  separate convictions and  sentences
on   two  counts  that  constitute  the  same
offense, a Whitton ruling does not impugn the
validity  of  the jurys underlying  verdicts.
That is, a Whitton ruling that two counts are
duplicative casts no doubt on the validity of
the jurys fact-finding or its conclusion that
the   defendant  is  guilty  of  the  conduct
alleged  in  both counts.  For  this  reason,
even   though  this  Court  has  occasionally
spoken of dismissal of the duplicative count,
we  have  most  often  (and  most  correctly)
described  the proper course of action  as  a
merger  of  the  two  counts  into  a  single
conviction  i.e., the entry of one conviction
and sentence premised on both jury verdicts.

Hurd, 107 P.3d at 322 (footnotes omitted).
          In other words, a Whitton challenge
necessarily  involves  both  of  the  related
convictions and sentences.  And even  if  the
challenge  is well-founded, the defendant  is
not  entitled to demand that the court ignore
one  of  the verdicts.  Rather, the defendant
is entitled to demand a single conviction and
sentence based on both of the verdicts.
          It  is  true that, in Whitton,  the
supreme court referred to a Whitton ruling as
          a type of sentencing decision, and the court
suggested  that  the remedy for  an  improper
Whitton  ruling was a sentence  appeal.   See
Whitton, 479 P.2d at 313-14.
          But  as  we  explained in Erickson,
both  the  Whitton decision  itself  and  the
supreme  courts subsequent decisions on  this
issue   clearly  demonstrate   that   Whitton
rulings   are  not  exercises  of  sentencing
discretion; rather, they are rulings of  law.
As  a  consequence, both the  State  and  the
defendant  are  entitled to seek  review  and
reversal   (not  just  disapproval)   of   an
erroneous Whitton ruling.  See Erickson,  950
P.2d at 585-87.  In particular, see State  v.
Occhipinti,  562  P.2d 348,  349-351  (Alaska
1977), where the supreme court held that  the
State is entitled to seek a writ of mandamus,
and  a re-sentencing, when the superior court
mistakenly    rules   that    a    defendants
convictions must merge under Whitton.
          Leaving  aside the legal basis  and
status  of  Whitton appeals, both the  Alaska
Supreme  Court and this Court have repeatedly
held  that  a defendant who is sentenced  for
two  or more offenses is not allowed to bring
a  sentence appeal that attacks only a single
sentence,  or isolated sentences, from  among
the entirety of the sentence imposed.  As  we
explained (most recently) in Custer v. State,

     When  a  defendant  pursues  a  sentence
appeal after the sentencing court has imposed
a composite sentence for two or more criminal
convictions, this Court assesses whether  the
defendants   combined  sentence  is   clearly
mistaken,  given the whole of the  defendants
conduct  and  history.  [Brown v.  State,  12
P.3d 201, 210 (Alaska App. 2000); Comegys  v.
State,   747   P.2d   554,   558-59   (Alaska
App.1987).]  Because the question is  whether
the  combined sentence is justified in  light
of the entirety of the defendants conduct and
history,  the  law does not  require  that  a
specific  sentence imposed for  a  particular
count  or offense be individually justifiable
as  if  that  one  crime were  considered  in
isolation.  [Waters v. State, 483  P.2d  199,
202  (Alaska 1971); Jones v. State, 765  P.2d
107,  109  (Alaska App. 1988);  Comegys,  747
P.2d at 558-59.]
     For  these  reasons, an appellate  court
will  not  hear a defendants challenge  to  a
composite  sentence unless the defendant  has
appealed   each   of   the   sentences   that
contributes to the composite total   so  that
the   court  can  meaningfully  evaluate  the
whole.   See Preston v. State, 583 P.2d  787,
788 (Alaska 1978).

Custer,  88 P.3d 545, 549 (Alaska App.  2004)
(footnotes replaced by bracketed text).
          The  Alaska Supreme Courts decision
in  Loola is premised on two assumptions that
are  inconsistent with this  case  law  (even
though  some  of this case law  predates  the
Loola  decision).  First, the supreme  courts
decision  rests  on the idea that  a  Whitton
appeal  is a sentence appeal (in the limited,
technical  sense  of  that  term   i.e.,   an
appellate  challenge to  the  severity  of  a
concededly  lawful  sentence).   Second,  the
supreme  courts decision rests  on  the  idea
that    defendants   who   receive   multiple
sentences are entitled to appeal only one  of
their sentences, if that is what they wish to
do.  Both of these premises are incorrect.
          It  therefore appears  to  me  that
Loola    was    decided   without    adequate
consideration  of the legal  issues  involved
and  the  governing  law.   The  decision  in
Allain (which was issued before I joined  the
Court   of  Appeals)  appears  to  be  better
reasoned and more consistent with the  Alaska
case law I have discussed here.  However,  if
there is a conflict between a decision of the
Alaska  Supreme Court and a decision of  this
Court, the supreme courts decision governs.
          The   present  case  is   different
enough  from Loola that we need not  directly
confront and resolve the discrepancy  between
Loola  and Allain.  But because the situation
posed in Loola and Allain (re-sentencing as a
result of a Whitton ruling) occurs with  some
frequency, I believe that judges and criminal
law  practitioners should be alerted to  this

      1  Hunter  v.  State, Alaska App.  Memorandum  Opinion  and
Judgment  No. 5259 at 3, 8 (August 2, 2007), 2007 WL  2405208  at
*2, *4.

     2 Id. at 31-36, 2007 WL 2405208 at *16-19.

     3 Id. at 32, 2007 WL 2405208 at *17.

     4 Id. at 32-37, 2007 WL 2405208 at *17-19.

     5 Id. at 36-37, 2007 WL 2405208 at *19.

      2  See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding  that  an  appellate court is  to  uphold  a  sentencing
decision unless the sentence is clearly mistaken).

      3  Hunter, Alaska App. Memorandum Opinion and Judgment  No.
5259 at 4-8, 2007 WL 2405208 at *2-5.

     4 AS 11.41.410(b) and former AS 12.55.125(i)(4).

     5 AS 11.41.410(b) and former AS 12.55.125(I)(3).

     6 AS 11.41.500(b) and former AS 12.55.125(c)(4).

     7 AS 11.41.500(b) and former AS 12.55.125(c)(3).

     8 AS 11.41.220(d) and former AS 12.55.125(e)(2).

     9 AS 11.41.210(b) and former AS 12.55.125(d)(2).

      10 Our first decision described Hunters composite term as a
94-year  term which is the term that is described by the original
written  judgment.  But the written judgment contained a clerical
error.   The  written judgment indicated that only  6  months  of
Count  X was imposed consecutively to the other counts.  In fact,
Judge  Vollands oral pronouncement of sentence imposed 18  months
of  Count  X  consecutively to the other counts.   This  clerical
error was discussed at resentencing.

     11 550 P.2d 369 (Alaska 1976).

     12 Id. at 371.

     13 608 P.2d 36 (Alaska 1980).

     14 Id. at 37.

     15 Id.

     16 Id. (citing Whitton, 479 P.2d 302 (Alaska 1970)).

     17 Id. at 312-13.

     18 Loola, 608 P.2d at 37.

      19  See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970)
and AS 12.55.005 (codifying the Chaney sentencing criteria).

      20  See, e.g., Pennsylvania v. Goldhammer, 474 U.S. 28, 106
S. Ct. 353, 88 L. Ed. 2d 183 (1985).

     21  See Smith v. State, 711 P.2d 561, 567 (Alaska App. 1985)
(in  absence  of aggravating or mitigating factors an  individual
sentencing   judge  has  no  discretion  to  deviate   from   the
presumptive term).

     22 781 P.2d 1005 (Alaska App. 1989).

     23 877 P.2d 777 (Alaska App. 1994).

     24 927 P.2d 751 (Alaska App. 1996).

     25 Schuenemann, 781 P.2d at 1009.

     26 Id. at 1007.

     27 Ross, 877 P.2d at 781-83.

     28 Adams, 927 P.2d at 759-61.

     29 996 P.2d 1230 (Alaska 2000).

     30 Id. at 1231.

     31 Id.

      32 See Williams v. State, 800 P.2d 955, 959-60 (Alaska App.
1990),  modified  on reconsideration, 809 P.2d 931  (Alaska  App.

     33 See McClain, 519 P.2d at 813-14.

     1 479 P.2d 302 (Alaska 1970).

     2 810 P.2d at 1021.

     3 Id.

     4 Id.

     5 Id.

     6 Id.

     7Id. at 1022.

     8Loola, 608 P.2d at 37.


     10Id., 474 U.S. at 29, 106 S.Ct. at 353.


     12Id., 474 U.S. at 29-31, 106 S.Ct. at 353-54.

     13Rozkydal v. State, 938 P.2d 1091, 1093-94 (Alaska App.

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