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NOTICE
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opinion is published in the Pacific Reporter. Readers
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303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| GREGORY L. OSBORNE, | ) |
| ) Court of Appeals No. A-9802 | |
| Appellant, | ) Trial Court No. 1JU-06-639 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No 2169 May 16, 2008 |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Juneau, Larry R. Weeks, Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. Jack
S. Schmidt, Assistant District Attorney,
Juneau, 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.
Gregory L. Osborne was convicted of three counts of
second-degree assault and one count of driving under the
influence. He received a composite term of 9 years imprisonment
with 30 months to serve and the remainder suspended. Osborne
appeals, arguing that his sentence is excessive. In response,
the State contends that Osborne has no right to appeal his
sentence, and that this court has no jurisdiction to decide
Osbornes case.
We conclude that Osborne has a right to appeal his
sentence, and that we have jurisdiction to consider Osbornes
sentence appeal. We nevertheless conclude that Osbornes
composite term is not excessive. However, as we explain below,
we conclude that one aspect of the superior courts sentencing
decision is illegal. We therefore direct the superior court to
amend the judgment to correct this illegality.
Background facts and proceedings
On the afternoon of May 13, 2006, three high school
students were walking along Willoughby Avenue in Juneau when they
were struck from behind by a pickup truck driven by Osborne. All
three students were injured when they were knocked down by the
collision. One of the students ended up underneath the truck
when it stopped.
Osborne was visibly intoxicated, and he was arrested
after he performed field sobriety tests. At the Juneau police
station, Osborne provided a breath sample that showed he had .159
percent blood alcohol level.
The grand jury indicted Osborne on three counts of
second-degree assault (recklessly causing serious physical injury
to each of the three students) and driving under the influence.
At Osbornes trial, the jury convicted Osborne of all four
charges.
Osborne had eight prior misdemeanor convictions, which
included a prior conviction for driving under the influence, but
he was a first felony offender for purposes of presumptive
sentencing (i.e., his sentencing on the three felony assault
charges). Under AS 11.41.210(b) and AS 12.55.125(d)(1), Osborne
faced a presumptive range of 1 to 3 years imprisonment for each
assault conviction. No aggravating or mitigating factors were
proposed by either party.
Superior Court Judge Larry R. Weeks concluded that
Osborne posed a substantial danger to others because of his
disregard for the rules of society. Judge Weeks also concluded
that it was important to impose suspended imprisonment in
addition to active imprisonment so that Osborne would have an
incentive to change his behavior.
On each assault count, Judge Weeks imposed a sentence
of 3 years with all but 10 months suspended. He made these
sentences consecutive, for a total of 30 months to serve and an
additional 6 years and 6 months suspended. For driving under the
influence, Judge Weeks imposed a sentence of 1 year with all but
20 days suspended, and he made this sentence concurrent with
Osbornes assault sentences.
Why we conclude that Osborne has the right to
appeal his composite sentence, and that we
have jurisdiction to hear his appeal
The State argues that Osborne has no right to appeal
his sentence. The State relies on AS 12.55.120(e), which was
enacted as part of the broad revision of Alaskas presumptive
sentencing scheme following the United States Supreme Courts
decision in Blakely v. Washington.1 Alaska Statute 12.55.120(e)
restricts the circumstances in which a defendant may appeal a
composite sentence. The statute provides that a defendant may
not appeal an individual felony sentence (on the ground that it
is excessive) if the sentence is within the prescribed
presumptive range, and it further provides that a defendant may
not appeal a consecutive or partially consecutive sentence
imposed in accordance with the minimum sentences set out in
AS 12.55.127.
The State points out that, because Osborne received
individual sentences within the applicable presumptive range, he
has no right to appeal those individual sentences on the ground
that they are excessive. (Osborne does not dispute this.) The
State further argues that Osborne has no right to appeal his
composite sentence on the ground that it is excessive because
that composite sentence was imposed in accordance with the
minimum sentences set out in AS 12.55.127. To evaluate the
States argument, we must examine the terms of AS 12.55.127.
AS 12.55.127 (enacted in 2004) contains the rules that
govern concurrent and consecutive sentencing. This statute
declares that, as a general rule, if a defendant is being
sentenced for two or more crimes, these sentences may be
concurrent or partially concurrent.2 But the statute enumerates
several exceptions to this general rule. For instance, if a
defendant is convicted of escape, the term of imprisonment for
that offense must be fully consecutive to the term of
imprisonment for the underlying crime.3
The portion of the statute that applies to Osbornes
sentencing is AS 12.55.127(c)(2)(F). This subsection states
that, because Osborne was convicted of three assaultive crimes
under AS 11.41, the superior court had to impose some additional
term of imprisonment for each additional crime.
The State argues that Osborne was sentenced in
accordance with this provision that is, he received some
additional time to serve for each of his three assaults. Thus,
the State concludes, Osborne has no right to appeal his composite
sentence.
The States interpretation of the statute would
essentially preclude sentence appeals of any consecutive or
partially consecutive composite sentence for, by law, all
consecutive sentences and partially consecutive sentences must be
imposed according to the rules laid out in AS 12.55.127.
We do not believe that the legislature intended for AS
12.55.120(e) to be interpreted in this manner. Rather, by its
terms, AS 12.55.120(e) precludes a sentence appeal of a
consecutive or partially consecutive sentence imposed in
accordance with the minimum sentences set out in AS 12.55.127.4
We therefore conclude that AS 12.55.120(e) was intended to
preclude the appeal of a composite sentence only when that
composite sentence is less than or equal to the minimum
consecutive sentence mandated by AS 12.55.127.
The legislative history of the statute supports our
interpretation. We have been unable to find any formal
discussion of composite terms of imprisonment during the
committee hearings on Senate Bill 56 (24th Legislature) the bill
that enacted AS 12.55.120(e) in its present form. However, the
sponsor statement offered in support of Senate Bill 56 explained:
Under this bill, a sentence cannot be
reversed as excessive if it is imposed within
[the applicable] presumptive range or [if it]
is required under [the] consecutive
sentencing legislation enacted last year.
Over the last two decades the appellate
courts in Alaska have developed a large body
of case law that has resulted in court-
specified benchmark sentences that often
unnecessarily limit the discretion of
sentencing judges. This bill replaces some
of those court-imposed benchmarks in favor of
legislatively enacted sentence ranges.[5]
In the same vein, the section-by-section legislative analysis of
Senate Bill 56 explained that the provision limiting sentence
appeals makes it clear that the [appellate] courts in Alaska
cannot reverse a sentence as excessive if [it is] within a
[presumptive] range specified in this bill, or imposes a
consecutive sentence required by law.6
As explained above, the portion of the consecutive
sentencing statute that applies to Osbornes case
AS 12.55.127(c)(2)(F) required Osborne to receive some
additional term of imprisonment for each of his second-degree
assault convictions. However, the statute does not specify a
minimum for this required additional term of imprisonment.
Although the parties to this appeal have not briefed
this issue, it appears that this statutory requirement would be
met if the sentencing court imposed as little as one extra day
for each additional assault (because one day is the minimum
increment that the Department of Corrections employs to calculate
sentences).
Returning, then, to the ultimate issue of whether
Osborne can appeal his composite sentence under AS 12.55.120(e),
we interpret this statute to mean that Osborne has a right of
appeal as long as his composite sentence exceeds the upper limit
of the presumptive range for any single count of second-degree
assault 3 years plus the minimum mandatory consecutive sentence
specified in AS 12.55.127 2 days.
As explained above, Osbornes composite sentence for the
three counts of second-degree assault is 9 years with 30 months
to serve and the remainder suspended. He is therefore entitled
to challenge this sentence on the ground that it is excessive
(and this court has jurisdiction to hear that appeal).
Osbornes composite term to serve is not excessive
The evidence at Osbornes trial showed that he had been
speeding and driving erratically before he struck his three
victims. Osbornes breath test result was nearly twice the
statutory limit of .08 percent specified in AS 28.35.030.
Moreover, Osborne caused severe injuries to the three victims
when he ran them down with his pickup.
Osbornes composite 30 months to serve is within the 1-
to 3-year presumptive range for a first felony offender convicted
of a single count of second-degree assault. Considering the
sentencing record as a whole, we conclude that Osbornes composite
term of 30 months to serve and an additional 6 years and 6 months
suspended is not clearly mistaken.7
One aspect of Osbornes sentence is illegal
As we mentioned earlier, there is one aspect of
Osbornes sentence that is illegal.
Osborne faced a presumptive range of 1 to 3 years
imprisonment for each count of second-degree assault. When Judge
Weeks imposed Osbornes three sentences for second-degree assault,
he imposed 3 years (the upper limit of the applicable presumptive
range) on each count and suspended all but 10 months of each
sentence.
Because Osborne did not prove any mitigating factors,
the suspension of this much time was a violation of AS 12.55.
125(g)(1). This statute provides that, in the absence of
mitigating factors, a defendants felony sentence of imprisonment
may not be suspended ... below the low end of the [applicable]
presumptive range. Here, the low end of the presumptive range
was 1 year. Judge Weeks therefore had to impose at least 1 year
to serve on each of Osbornes second-degree assault sentences.
Because Osbornes sentences for second-degree assault
were not lawfully imposed, we must remand his case to the
superior court for entry of an amended judgment that complies
with AS 12.55.125(g)(1).
We note, however, that Osbornes sentence can be amended
to comply with section 125(g)(1) in a manner that does not
increase his composite sentence. Even though the superior court
must impose 1 year to serve for each of the three second-degree
convictions, the superior court has the authority to make these
sentences partially consecutive, so that they total no more than
the 30 months to serve that Osborne originally received. Because
it is possible to correct Osbornes sentence without increasing
it, the superior court is legally obliged to do so.8
Conclusion
Osbornes composite term to serve is AFFIRMED, but the
superior court is directed to amend the judgment in conformity
with this opinion.
_______________________________
1 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
2 AS 12.55.127(b).
3 AS 12.55.127(c)(1).
4 Emphasis added.
5 Undated sponsor statement for S.B. 56, 24th Leg. (AK 2005)
issued by Senator Gene Therriault (Senate Judiciary Committee
file for S.B. 56, 24th Legislature) (emphasis added).
6 Undated sectional analysis of S.B. 56, 7 (Senate Judiciary
Committee file on S.B. 56, 24th Legislature) (emphasis added).
7 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).
8 See Christensen v. State, 844 P.2d 557, 558 (Alaska App.
1993); Joseph v. State, 712 P.2d 904, 906 (Alaska App. 1986).
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