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Smith v. State (7/3/2008) ap-2175

Smith v. State (7/3/2008) ap-2175

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


JOHN P. SMITH II, ) Court of Appeals No. A-9681
Appellant, ) Trial Court Nos. 3PA-04-2787, 3PA-04-2788,
) 3PA-04-2791, 3PA-04- 2986, 3PA-05-410,
v. ) and 3PA-05-2842 Cr
Appellee. ) No. 2175 July 3, 2008
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Palmer, Beverly  W.  Cutler,

          Appearances:  Shelley K. Chaffin,  Anchorage,
          for   the   Appellant.   Richard  K.   Payne,
          Assistant  District Attorney,  and  Roman  J.
          Kalytiak,  District  Attorney,  Palmer,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

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

          MANNHEIMER, Judge.

          John P. Smith II appeals the 20-year composite sentence
that he received for a dozen criminal offenses (ten felonies  and
two  misdemeanors),  most of them committed  during  a  two-month
period  in the summer of 2004.  Smiths appeal raises two  issues.
First,  does he have the right to appeal his composite  sentence?
And  second,  if  he  does,  is the  20-year  composite  term  of
imprisonment excessive?
Does Smith have the right to appeal his sentences?

          Smiths   twelve   criminal  convictions   are
contained  in  eight  separate judgements.   The  State
contends that, under Alaska law, the superior court was
required to impose the sentences in each of these eight
judgements   consecutively   and  that,   because   the
superior  court  was  required  to  impose  consecutive
sentences for almost all of Smiths offenses, Smith  has
no right to appeal these sentences.

  (A)  Summary of the States argument

          The  States argument is based on AS 12.55.127
(the statute that governs the imposition of consecutive
and concurrent sentences) and AS 12.55.120 (the statute
that defines the right to appeal a criminal sentence on
the ground that it is excessive).
          During  the  2004  legislative  session,  the
Alaska  Legislature amended the law governing a  courts
power  to  impose consecutive and concurrent sentences.
The   legislature   repealed  the   earlier   statutory
provisions   governing  this  area   of   law    former
AS 12.55.025(e), (g), and (h)  and, in their place, the
legislature enacted AS
          Subsection (a) of AS 12.55.127 declares  that
[i]f  a  defendant  is required  to  serve  a  term  of
imprisonment under a separate judgment, [then any] term
of  imprisonment  imposed in a later judgment,  amended
judgment, or probation revocation shall be consecutive.
          Subsection  (b) of the statute declares  that
if  a  defendant  is being sentenced for  two  or  more
crimes   in   a   single  judgment,  [the]   terms   of
imprisonment may be concurrent or partially concurrent,
except as provided in subsection (c).
          Subsection  (c) of the statute lists  several
instances  where  a  sentencing court  is  required  to
impose either wholly or partially consecutive sentences
for particular crimes.
          This  new statute took effect on July 1, 2004
approximately  two  weeks before  Smith  commenced  his
criminal rampage.2  Thus, AS 12.55.127 governed  Smiths
          Nine  months  later  (in  March  2005),   the
legislature  amended  AS 12.55.120,  the  statute  that
governs  a  criminal  defendants  right  to  pursue   a
sentence   appeal.   The  legislature   added   a   new
subsection  that  eliminates  a  defendants  right   of
sentence  appeal  in  two  situations:   (1)  when  the
defendants   sentence   is  within   [the]   applicable
presumptive  range  set out in AS  12.55.125  for  that
offense,  and  (2) when the defendants  sentence  is  a
consecutive  or partially consecutive sentence  imposed
in  accordance with the minimum sentences set out in AS   This subsection is currently codified  as
          AS 12.55.120(e).
          Based   on  the  combination  of  these   two
statutes   AS  12.55.127(a) and  AS  12.55.120(e)   the
State argues that Smith has no right to appeal 18 years
of his 20-year composite sentence.
          The   two   statutes,  read  in  conjunction,
clearly  forbid  Smith  from  appealing  any   of   his
individual sentences  since each of these sentences was
within  the  prescribed presumptive range for  a  first
felony offender convicted of those offenses.  But Smith
does  not  challenge  any of his individual  sentences;
rather,  he  challenges his 20-year composite  term  of
          To  support its contention that Smith has  no
right  to  appeal the great majority of  his  composite
term of imprisonment, the State relies on the provision
of AS 12.55.120(e) that precludes sentence appeals of a
consecutive  or partially consecutive sentence  imposed
in  accordance with the minimum sentences  set  out  in
AS  12.55.127.   The State argues that  this  provision
bars  Smith  from appealing 18 years of  his  composite
term   because, according to the State, subsection  (a)
of  AS  12.55.127 required the superior court to impose
all   but   two  years  of  Smiths  various   sentences
          To  evaluate the States claim, we must review
the  law  governing consecutive sentences as it existed
before the enactment of AS 12.55.127 in 2004, and  then
we  must assess what changes the legislature made  when
it repealed this former law and enacted AS 12.55.127.

  (B)    The   pre-2004   law   governing   consecutive

          As  explained  above, the law  that  governed
consecutive  sentencing before 2004  was  contained  in
three   now-repealed  subsections   of   AS   12.55.025
subsections (e), (g), and (h).
          Subsection  (e)  stated  two  rules.   First,
defendants  being sentenced for two or more crimes  had
to   receive  consecutive  sentences  except   in   the
circumstances  described  in subsection  (g).   Second,
consecutive sentencing was required for defendants  who
were  sentenced  for  a crime when  they  were  already
imprisoned because of a previous criminal judgement.
          Subsection  (g)  listed six circumstances  in
which   concurrent   sentencing   was   allowed.    And
subsection (h), in turn, contained a limited  exception
to   subsection  (g)   i.e.,  it  required  consecutive
sentencing   in  certain  instances  even  though   the
defendant   would  otherwise  qualify  for   concurrent
sentencing under subsection (g).
          Here  is  the  exact  wording  of  former  AS
          Except  as  provided in (g) and  (h)  of
     this  section,  if  the  defendant  has  been
     convicted of two or more crimes, sentences of
     imprisonment shall run consecutively.  If the
     defendant  is  imprisoned  upon  a   previous
     judgment  of  conviction  for  a  crime,  the
     judgment  shall provide that the imprisonment
     commences  at  the  expiration  of  the  term
     imposed by the previous judgment.
     Subsection (g) declared:
          If  the defendant has been convicted  of
     two  or  more  crimes before the judgment  on
     either  has  been  entered, any  sentence  of
     imprisonment  may  run  concurrently  if  ...
     [there  followed six circumstances  in  which
     concurrent sentences were authorized].
     And subsection (h) declared:
          If  [a] defendant has been convicted  of
     two   or   more  crimes  under  AS  11.41.200
     11.41.250  or 11.41.410  11.41.458  in  which
     the  victim  or  victims of the  crimes  were
     minors[,] and [if] the judgment on any of the
     convictions   has   not   been   [previously]
     entered,   the   court  shall   impose   some
     consecutive period of imprisonment  for  each
          As  just explained, subsection  (g)
of  the  statute contained six categories  of
cases  in  which  concurrent  sentencing  was
allowed.  In State v. Andrews, 707 P.2d  900,
905-06,  908 (Alaska App. 1985),  this  Court
interpreted  these  six categories  as  broad
enough  to  permit concurrent  sentencing  in
almost  every instance where a defendant  was
simultaneously  sentenced  for  two  or  more
crimes.  And, based on this interpretation of
subsection  (g), this Court then  interpreted
the combination of AS 12.55.025(e) and (g) as
merely  expressing a preference  for,  rather
than  requiring,  consecutive  sentences  for
defendants who were being sentenced  for  two
or more crimes.  Andrews, 707 P.2d at 910.
          (The  Alaska Supreme Court affirmed
this  Courts interpretation of these statutes
in  State  v.  Andrews, 723 P.2d  85  (Alaska
          The wording of subsection (e) posed
one    other    significant    question    of
          As noted above, the second sentence
of   subsection   (e)  required   consecutive
sentences  whenever a judgement  was  entered
against   a   defendant   who   was   already
imprisoned   upon  a  previous  judgment   of
conviction for a crime.  In Wells  v.  State,
706  P.2d 711 (Alaska App. 1985), this  Court
was  asked to construe how this provision  of
subsection  (e)  applied to a defendant  who,
while  awaiting sentencing in a Palmer  case,
was sentenced in an unrelated Anchorage case.
          The  State  argued in  Wells  that,
because  the defendant was already imprisoned
upon a previous judgment (i.e., the judgement
from  his  Anchorage conviction) by the  time
the   superior  court  held  the   sentencing
hearing  in the defendants Palmer  case,  the
court  was  obliged to impose  a  consecutive
sentence  for  the defendants  Palmer  crime.
Wells,  706 P.2d at 713.  This Court rejected
the    States    argument   and   interpreted
subsection   (e)  as  requiring   consecutive
sentences  only  when the  defendants  second
crime  was  committed  after  judgement   was
entered against the defendant for the earlier
crime.    We   explained  that   the   States
interpretation   of  the   statute   led   to
irrational   and  unjustified  disparity   in

     [T]he second sentence of AS 12.55.025(e)
...  requires  imposition  of  a  consecutive
sentence  [i]f  the defendant  is  imprisoned
upon a previous judgment of conviction for  a
crime.   ...   The  states interpretation  of
subsection (e) assumes that previous judgment
means  any judgment entered before the  entry
of  judgment in the current case.  While this
interpretation  may seem plausible  at  first
blush,    it   is   on   closer   examination

     To   interpret  subsection  (e)  in  the
manner  proposed by the state would  lead  to
irrational results:  a defendant charged with
and  convicted of two or more separate crimes
in  a  single indictment would be subject  to
concurrent  sentencing.  The same would  hold
true  for  a defendant charged with  separate
crimes   in  separate  indictments  if   that
defendant  made  arrangements for  sentencing
proceedings    on   the   charges    to    be
consolidated.  Yet, for a defendant  who  did
not    have   the   foresight   to    arrange
consolidated sentencing proceedings[,] or for
whom   consolidated  proceedings   were   not
possible due to scheduling problems or  other
procedural   difficulties,   imposition    of
consecutive  sentences would be mandatory  if
the states interpretation were adopted.

     We  cannot  conceive why the legislature
might   have  intended  the  application   of
mandatory consecutive sentencing to  turn  on
such fortuitous and haphazard considerations.
The   present  case  provides  an   excellent
illustration.  Here, Wells Anchorage  counsel
was  apparently unaware of the pending Palmer
charges  when Wells pled no contest  and  was
sentenced   for   the   Anchorage    offense;
consequently,  no effort was made  to  obtain
consolidated  sentencing hearings.   Although
the  state concedes that, under its  proposed
interpretation,   a   routine   request   for
consolidated sentencing hearings  would  have
sufficed  to  avoid  a mandatory  consecutive
sentence, it maintains that in the absence of
such  a  request a consecutive  sentence  was
required.  The state insists that, even if it
does  not  particularly make sense,  this  is
apparently   the   manner   in   which    the
legislature  intended AS 12.55.025(e)  to  be
construed.    Yet   we   believe   that   the
irrationality of this result only  serves  to
underscore  the  ambiguity in  the  statutory

Wells,  706  P.2d at 714.  We therefore  held
that  the  phrase imprisoned upon a  previous
judgment  of  conviction  referred  only   to
defendants  who committed a new  crime  after
the  entry  of  judgement for a prior  crime.
Id. at 715.
          Thus,    following   this    Courts
decision in Wells, consecutive sentencing was
required by former AS 12.55.125(e) only if  a
defendant  committed a  new  crime  while  on
parole from a previous crime,4 or committed a
new  crime while on probation from a previous
crime,5  or committed a new crime  in  prison
while  serving  a  sentence  for  a  previous

(C)   The wording of AS 12.55.127, and the  States
interpretation  of  how this  statute  applies  to
Smiths case

     As  explained above, the legislature repealed
AS  12.55.025(e), (g), and (h) in 2004.  In  their
place,   the  legislature  enacted  AS  12.55.127.
Subsections (a), (b), and (c) of AS 12.55.127  now
codify   the   rules   that   govern   consecutive
     Subsection  (a)  of  the statute  requires  a
court  to impose consecutive sentences whenever  a
defendant  is  sentenced  to  serve  a   term   of
imprisonment  under a separate judgment  and  then
receives  another  term of  imprisonment  under  a
later  judgment,  amended judgment,  or  probation
          Subsection  (b)  allows  a  court  to  impose
concurrent  or  partially concurrent sentences  when  a
defendant is being sentenced for two or more crimes  in
a single judgment.
          Subsection  (c)  completes  the  trilogy   by
setting  forth  a list of exceptions to the  concurrent
sentencing  allowed  by  subsection  (b).    That   is,
subsection   (c)  lists  several  instances   where   a
sentencing court is required to impose either wholly or
partially consecutive sentences for particular  crimes,
even  though the defendant would otherwise qualify  for
concurrent sentencing under subsection (b) (because the
defendant is being sentenced for two or more crimes  in
a single judgement).
          In  the  present  case,  the  superior  court
sentenced  Smith  for twelve crimes at  two  sentencing
hearings.  These twelve charges were contained  in  six
different criminal cases.  However, rather than issuing
six  judgements  against Smith (one for  each  criminal
case),   the  superior  court  issued  eight   separate
judgements.   For  some  reason not  disclosed  in  the
record,   the   superior  court  chose  to   issue   an
additional, separate judgement for each of  Smiths  two
misdemeanor  convictions  the  conviction  for  driving
under the influence in case number 3PA-04-2986 Cr,  and
the  conviction  for  violation of  the  conditions  of
felony release in case number 3PA-05-2842 Cr.
          The   State   argues  that   because   Smiths
sentences  were  imposed  in separate  judgements,  the
superior court was obliged by AS 12.55.127(a) to impose
the  sentences  contained in each of  these  judgements
consecutively  to  each  other   and,  thus,  Smith  is
effectively barred from appealing his 20-year composite
          (Under  the  States  interpretation  of   the
statute,  Smith  would  still be  able  to  appeal  the
superior   courts   decision  to   impose   consecutive
sentences  for offenses contained within any individual
judgement.  Thus, in case number 3PA-04-2791 Cr,  where
Smith  was sentenced to 8 years imprisonment for first-
degree  robbery  and a consecutive 1  year  for  first-
degree vehicle theft, Smith would be able to appeal the
superior courts decision to impose the consecutive year
for   the  vehicle  theft.   Likewise,  in  the  felony
judgement  in case number 3PA-05-2842 Cr,  where  Smith
was  sentenced to 2 years imprisonment for first-degree
burglary  and  a  consecutive 1 year for  second-degree
theft,  Smith  would  be able to  appeal  the  superior
courts decision to impose the consecutive year for  the
second-degree theft.)
          One   underlying  problem  with  the   States
proposed interpretation of AS 12.55.127(a) is  that  it
does not comport with the wording of the statute.
          The  State takes the position that subsection
(a)   requires   consecutive  sentencing   whenever   a
defendant receives a term of imprisonment in a separate
judgement.  But this is not exactly what subsection (a)
says.  Rather, subsection (a) declares that consecutive
sentencing  is  required  when  a  defendant  [who]  is
required  to  serve  a  term of  imprisonment  under  a
separate  judgment receives a term of imprisonment  ...
in  a  later  judgment, amended judgment, or  probation
          For  the  reasons we explain in this opinion,
we conclude that the phrase later judgment [or] amended
judgment  refers to a judgement based on a  crime  that
was committed after the court entered judgement for the
defendants  separate  crime.   In  other  words,   this
statutory language was intended to re-enact Alaskas pre-
existing consecutive sentencing rule, as interpreted by
this Court in Wells.
          In  order to explain our conclusion, we  must
set  forth  the legislative history of AS 12.55.127  in
some detail.

  (D)  The legislative history of AS 12.55.127

          The  wording  of AS 12.55.127(a)  poses  some
obvious   difficulties.   For  instance,  the   statute
appears  to  require a consecutive term of imprisonment
whenever  the  sentencing  court  issues  a  later  ...
amended  judgment.   But  many amended  judgements  are
issued  to fix a clerical error or to otherwise conform
the  judgement to what the sentencing judge said at the
sentencing  hearing.   They are meant  to  correct  and
supersede  the  originally issued judgement.   In  such
instances, it would be nonsensical to require the  term
of  imprisonment specified in the amended judgement  to
be  served  consecutively to the term  of  imprisonment
specified in the original judgement.
          Another   problem  is  that  the  number   of
judgements entered against a defendant sometimes  bears
little  or  no relationship to the number  of  criminal
episodes  that  the  defendant has  engaged  in.   This
problem  is illustrated by the actions of the  superior
court  in  Smiths  case.  As explained  above,  two  of
Smiths  six  criminal cases involved a  combination  of
felony  and  misdemeanor charges.  The  superior  court
segregated  the  two  misdemeanor  counts  and   issued
separate  judgements  on those misdemeanor  convictions
thus increasing the total number of separate judgements
to eight.
          Under  the States proposed interpretation  of
the  statute,  because the superior  court  decided  to
issue   separate   judgements  for  these   misdemeanor
convictions, the superior court was apparently required
to impose the misdemeanor sentences consecutively  and,
thus, Smith would have no right to appeal the fact that
these sentences are consecutive to his other sentences.
But  we  seriously  doubt that the  Alaska  Legislature
intended to allow sentencing judges to adopt the tactic
of   issuing  a  separate  judgement  for  each  of   a
defendants   criminal  convictions  as   a   means   of
precluding  the  defendant from  appealing  the  judges
decision to impose the sentences consecutively.
          What, then, did the legislature mean when  it
declared  that,  if  a defendant  receives  a  term  of
imprisonment  under a separate judgment,  any  term  of
imprisonment  imposed  in  a  later  judgment,  amended
judgment, or probation revocation shall be consecutive?
We  turn to the legislative history of AS 12.55.127  to
answer this question.
          AS  12.55.127 began life as one section of  a
lengthy  omnibus  criminal law bill introduced  by  the
governor  in 2003.  (Actually, the governor  introduced
twin  bills:   House  Bill 244 (23rd  Legislature)  and
Senate Bill 170 (23rd Legislature).)
          As   reflected  by  the  minutes  of  several
legislative  committee meetings during 2003  and  2004,
the  governors  omnibus criminal law  bill  encountered
substantial  resistance in the legislature.   The  bill
contained so many controversial provisions that it drew
active opposition from a wide range of legislators  and
          By the end of the 23rd Legislature (i.e., the
spring  of  2004), it seemed clear that  neither  House
Bill  244 nor its sibling, Senate Bill 170, would pass.
So on May 11, 2004 (i.e., shortly before the end of the
legislative  session),  the  provision  on  consecutive
sentencing  was inserted into another bill  the  Senate
Resources Committees Substitute for the House Committee
Substitute for House Bill 309.  (Or, in the  jargon  of
courts and legislators, SCS HCS HB 309 (Res).)
          Until  that time, the sole purpose  of  House
Bill  309 had been the enactment of a new provision  in
Title  16  (the  laws relating to  fish  and  game)  to
prohibit  the  introduction of live nonindigenous  fish
[or  the live fertilized eggs of such fish] into a body
of  fresh public water in this state.  But by virtue of
the  May  11th amendment, House Bill 309 was  re-titled
An  Act  relating to nonindigenous fish and consecutive
sentencing,  and the text of what is now  AS  12.55.127
          was inserted into the bill as section 3.  In this
revised  form, House Bill 309 was enacted as SLA  2004,
ch. 125.
          (We   express  no  opinion  on  whether   the
legislatures  action  violated the single-subject  rule
contained  in  Article II, Section  13  of  the  Alaska
          There  are  no  committee minutes  discussing
House  Bill  309  in  its post-May 11th  revised  form.
Therefore,  to  discern how the legislature  understood
the provision on consecutive and concurrent sentencing,
we  must  turn back to the committee minutes from  2003
and 2004 dealing with House Bill 244.
          At a meeting of the House Judiciary Committee
on  April  14, 2003, Anchorage Chief Assistant District
Attorney John Novak told the committee members that the
provisions  of House Bill 244 dealing with  consecutive
sentencing were designed to achieve a limited  purpose:
to  require  sentencing judges to impose  a  defendants
mandatory minimum sentences consecutively.
          Mr.  Novak told the Committee that  when  the
legislature  enacted the prior provisions dealing  with
consecutive  sentencing  (i.e.,  when  the  legislature
enacted  former  AS 12.55.025(e), (g),  and  (h)),  the
legislature  [acted] with the clear intent  of  wanting
consecutive  sentences  [to  be  mandatory].   However,
according to Novak, th[at earlier] legislation was  not
well   drafted  and,  thus,  the  [appellate]  court[s]
interpreted  the  legislation to mean that  consecutive
sentencing  was  simply a legislative  preference,  not
          (Mr. Novak was referring to State v. Andrews,
707  P.2d 900 (Alaska App. 1985), affirmed 723 P.2d  85
(Alaska  1986), which held that former AS  12.55.025(e)
and  (g)  expressed  a  preference  for,  but  did  not
require,  consecutive sentences when  a  defendant  was
sentenced for two or more crimes at the same time.)
          Novak  then  told  the  Committee  that   the
consecutive  sentencing provisions of  House  Bill  244
were  not  intended to take the law back  to  what  was
intended  with the 1982 legislation  i.e., not intended
to  require  complete consecutive  sentencing  for  all
crimes involving separate victims.  Rather, Novak  told
the  Committee  that the provisions of House  Bill  244
would  only require [that] mandatory minimum  sentences
... be consecutive.9  Novak then gave this example:
     [If  a]  drunk driver [killed two adults  and
     injured  their child, and if the driver]  was
     convicted of murder in the second degree [for
     killing the two adults], he or she would have
     to   serve  10  years  [i.e.,  the  mandatory
     minimum  sentence  for second-degree  murder]
     for  each  of  the  adults killed,  and  [the
     driver  would  have  to  serve]  at  least  1
     [consecutive] day for the crime of assaulting
     the child, for a total of 20 years and 1 day.
     Minutes of the House Judiciary Committee  for
     April 14, 2003, Tape 03-38, Side B, Log  Nos.
     2226   to   1958.    (Apparently,   on    the
     legislatures tape machines, the  log  numbers
     run backwards on side B of a tape.)
          The  House Judiciary Committee held
House   Bill  244  under  consideration   for
several   weeks.   On  May  9,  2003,   Chief
Assistant  Attorney General Dean  J.  Guaneli
(of  the  Criminal Division  Central  Office)
appeared  before the Committee to respond  to
questions about the bill.
          In   response  to  questions   from
Representative Les Gara about the consecutive
sentencing  provisions  of  the   bill,   Mr.
Guaneli  told the Committee that  House  Bill
244  required consecutive sentencing in  very
limited circumstances:

     What this provision does  [let me] first
explain  about [the] current law.   In  1982,
the    legislature   adopted   the    current
consecutive sentencing statutes.  And if  you
read  them, they do appear to say [that] just
about everything is consecutive.

     But ... there was a problem in drafting,
and  the  Alaska appellate courts have  said,
That  isnt what it says.  It may be what  was
intended,   and   we   recognize   that   the
legislature  prefers there to be  consecutive
sentencing,    but   [mandatory   consecutive
sentencing]  isnt the law.   So  what  [House
Bill  244]  does is, it tries to address  two
kinds  of  crimes  for mandatory  consecutive
sentencing:  homicides and rapes,  or  first-
degree  sexual  abuse of a  minor   in  other
words, [sexual] penetration of a minor  under
13.   [Sentencing  for]  everything  else  is
essentially at the judges discretion.  [Thus,
for] the particular crime that Representative
Gara  talked about, ... first-degree assault,
...  there  is  no  provision  for  mandatory
consecutive sentencing under this bill.

Minutes of the House Judiciary Committee  for
May  9,  2003, Tape 03-58, Side B,  Log  Nos.
          Mr.  Guaneli then added that  House
Bill 244 did also require some active term of
imprisonment  of  each additional  crime  ...
under  AS 11.41.200  [250]  i.e., the various
degrees of assault  [because a] judge  really
ought  to  recognize that there were separate
victims  and  impose  some  additional  time.
[But  the  new statute] doesnt say  how  much
[time  to  impose]; it can be [as little  as]
one day.10
          Guaneli  characterized the bill  as
impos[ing]    some   type   of    consecutive
sentencing,  but  its really  fairly  modest.
...    This   really  is  a   fairly   modest
          Mr.   Novaks   and   Mr.   Guanelis
explanations  of  the consecutive  sentencing
provisions were offered to the legislature in
2003.   As  explained above, House  Bill  244
contained  so  many controversial  provisions
that it ran into considerable trouble in  the
legislature   that  year.   In  response   to
legislative   criticism  and  concerns,   the
Department  of  Law brought  back  a  revised
proposal when the 23rd Legislature reconvened
in 2004.
          In   the   spring  of   2004,   the
Department    of    Law    sent    a    third
representative, Deputy Attorney General Susan
A.  Parkes, to introduce the revised bill  to
the  legislature.  In appearances before  the
House Judiciary Committee on March 19th12 and
before  the House Finance Committee on  April
21st,13    Ms.  Parkes  explained  that   the
provisions   of   the   bill   relating    to
consecutive  sentencing  were  identical   to
those   contained  in  the   previous   years
version.   According  to  Parkes,  the   only
significant change from the then-current  law
would  be that consecutive sentencing  either
total  or partial  would be mandated for  the
most serious crimes.14
          Parkess     most    lengthy     and
substantive  discussion  of  the  consecutive
sentencing  provisions occurred in  front  of
the  House  Judiciary Committee on March  30,
2004.15   Parkes told the Committee that  the
proposed provisions on consecutive sentencing
did   not   mandate  or  even   establish   a
presumption  that  all  sentences  should  be
consecutive.16   This prompted Representative
Les  Gara  to ask Parkes, So are  you  saying
that  [these proposed] statutes provide  that
in   some  cases  the  presumption   is   not
consecutive  sentences?   (Emphasis  added)17

          In response to Representative Garas
question,  Parkes replied that  the  proposed
new  statute  would carry forward  the  then-
          current rule codified in AS 12.55.025(e) and
(g).    In  other  words,  Parkes  told   the
Committee  that, except for the most  serious
crimes, concurrent sentencing would still  be
allowed   under  the  terms  of   former   AS
12.55.025(g)  whenever the defendant has been
convicted  of two or more crimes  before  the
judgment on either has been entered.18
          Parkes  then  added a comment  that
suggested  a limited expansion of  concurrent
sentencing.   As explained above,  former  AS
12.55.025(e) and (g) had been interpreted  to
allow concurrent sentencing, but to create  a
preference  for consecutive sentencing.   But
Parkes  told  the  House Judiciary  Committee
that,  under the proposed new law, its  [just
an]  opportunity [for consecutive sentencing]
rather than a presumption.19

  (E)   Why we reject the States interpretation  of  AS

          As can be seen from the foregoing legislative
history  of  AS  12.55.127,  the  Department   of   Law
consistently took the position that this statute  would
work  only  a  modest  change in Alaska  law  governing
consecutive  and  concurrent sentencing.   Indeed,  the
changes   described   by   the   Department   of   Laws
representatives   do   not   appear   to   involve   AS
12.55.127(a) and (b) at all.  Rather, the changes  that
the Department described are seemingly all contained in
subsection  (c)  of  the statute  the  portion  of  the
statute  that  sets forth a list of rules  for  when  a
defendant  must receive at least partially  consecutive
sentences for various types of crimes.
          During the many legislative hearings on  this
proposed statute, no one stated or even suggested  that
subsections (a) and (b)  the portions of the statute at
issue  in the present case  would work a change in  the
law  (with  the  exception of the one  remark  made  by
Deputy  Attorney General Parkes to the House  Judiciary
Committee, suggesting that these two subsections  would
eliminate  the then-existing preference for consecutive
sentencing).  Rather, as we have described  above,  the
Department  of Law consistently took the position  that
subsections (a) and (b) merely carried forward existing
law   that is, they allowed concurrent sentencing, with
the exception of the consecutive sentencing mandated by
subsection (c).
          We  acknowledge that this conclusion  is  not
self-evident  from the wording of AS  12.55.127(a)  and
(b).   The  language of these two subsections does  not
mimic  the language of former AS 12.55.025(e) and  (g).
But  the  States  suggested reading of  subsection  (a)
i.e.,   its  argument  that  subsection  (a)   requires
          consecutive sentencing whenever sentences  of
imprisonment  are imposed in separate judgements   does
not comport with the wording of the subsection, and  it
is  inconsistent with the legislative history  we  have
just set forth.
          That  legislative history   the  sum  of  the
discussions and descriptions of AS 12.55.127  found  in
the  various legislative committee hearings of 2003 and
2004  demonstrates that subsections (a) and (b) of  the
statute  were intended by the Department  of  Law,  and
understood  by  the  Alaska Legislature,  to  basically
restate  the  consecutive sentencing rules codified  in
the   earlier   law,  AS  12.55.025(e)  and   (g),   as
interpreted  by  the decisions of this  Court  and  the
Alaska Supreme Court.
          For these reasons, we conclude that the State
is   mistaken  when  it  asserts  that  subsection  (a)
mandates  consecutive sentencing whenever a  defendants
sentences   are   contained  in  separate   judgements.
Instead,   with   the  exception  of  the   consecutive
sentencing  mandated by subsection (c) of the  statute,
subsections (a) and (b) were meant to carry forward the
pre-existing   rule  that  consecutive  sentences   are
required  in  only  one category of  cases:   instances
where  a  defendant is sentenced for a crime  that  the
defendant committed after judgement was issued  against
the   defendant  for  an  earlier  crime.    In   those
instances,  the  sentence for the  new  crime  must  be
consecutive to the defendants sentence for the  earlier
crime    including  any  amended  sentence   that   the
defendant  might  receive  if  the  court  revoked  the
defendants probation from the earlier crime.
          Our conclusion on this point is bolstered  by
the  fact  that, if we interpreted AS 12.55.127(a)  and
(b)   as  the  State  suggests   in  other  words,   if
consecutive sentencing were mandated whenever  a  court
issued  a  defendants sentences in separate  judgements
this  would  give  rise  to  the  same  potential   for
irrational  sentencing that this  Court  identified  in
Wells v. State, when we adopted a limiting construction
of former AS 12.55.025(e).20
          If  AS  12.55.127 were interpreted to require
consecutive   terms   of  imprisonment   whenever   the
sentencing   court   issued  separate   judgements,   a
sentencing   courts  authority  to  impose   concurrent
sentences for two or more crimes would hinge  in  large
measure  on the prosecutors initial charging  decision.
If  the prosecutor chose to join the crimes in a single
indictment,  concurrent sentences would be allowed  (in
the   sentencing  judges  discretion).   But   if   the
prosecutor  chose  to  pursue  these  same  crimes   in
separate criminal cases, concurrent sentences would  be
          By  the  same  token, even when a  defendants
crimes   were  joined  in  the  same  indictment,   the
          sentencing judge could effectively require consecutive
sentences   and  insulate those  sentences  from  later
attack  by dividing up the charges and issuing separate
judgements for each conviction.
          But  neither a prosecutors decision  to  join
different  crimes  in  the  same  indictment,   nor   a
sentencing judges decision to issue separate judgements
on  different counts of the same indictment, appears to
have any rational bearing on the question of whether  a
defendant  should  receive  consecutive  or  concurrent
sentences for multiple crimes.  What we said in  Wells,
when   we   rejected  a  literal  reading   of   former
AS  12.55.025(e),  applies equally  to  the  conundrums
posed by the States proposed reading of AS 12.55.127(a)
and  (b):  We cannot conceive why the legislature might
have  intended the application of mandatory consecutive
sentencing  to  turn on such fortuitous  and  haphazard
considerations.  706 P.2d at 714.
          Accordingly,  we conclude that  AS  12.55.127
did  not  require the superior court to  impose  Smiths
sentences  consecutively (either  in  whole  or  part).
Rather,  the  superior court was authorized  to  impose
concurrent  sentences  in  Smiths  case   and,   as   a
consequence, Smith is entitled to appeal his  composite
term of imprisonment.

Whether Smiths 20-year composite sentence is excessive

          Now  that  we  have concluded that  Smith  is
entitled to appeal his composite sentence, we  turn  to
the   remaining  issue  in  this  case:   whether  that
sentence is excessive.  To explain our answer  to  this
question,  we  must  first describe  Smiths  series  of
criminal offenses.
          As  we  explain in more detail  below,  Smith
committed  a series of criminal acts during the  summer
of  2004.   As a result, the State filed five different
criminal  cases  against Smith,  comprising  twenty-six
different  offenses.  These five cases were  ultimately
resolved by an omnibus plea agreement.
          However,  before Smith and the State  reached
this  omnibus plea agreement, while Smith was  in  jail
awaiting  trial  on these five cases, Smith  asked  the
superior court to release him for one day to attend his
fathers  funeral.   The  superior  court  granted  this
request  and  released  Smith to his  mothers  custody.
Smith  then  absconded   and  committed  more  offenses
(burglary, theft, and criminal mischief).  This led  to
the  filing  of  a sixth criminal case  against  Smith.
This  sixth  case  was  resolved  in  a  separate  plea

  (A)   The details of Smiths criminal conduct in these
  six cases

          On  July 18, 2004, eighteen-year-old John  P.
Smith II was expelled from the military academy he  had
been attending.  He then stole a pickup truck belonging
to  the  Municipality of Anchorage.  Accompanied  by  a
friend,  Smith drove the truck to Jim Creek  (southeast
of  Palmer)  and  went  four-wheeling.   This  activity
caused $5000 of damage to the pickup truck.  Smith  and
his  friend, both of whom had been drinking, then stole
another  pickup truck.  Smith drove this second  pickup
truck  at  speeds of over 90 miles per hour.   Although
Smiths  friend urged him to stop driving  crazy,  Smith
did  not heed this warning.  Ultimately, the truck  hit
an  embankment, became airborne, struck a utility  pole
(which split in half), and then landed on its roof  and
caught fire.
          A witness summoned emergency personnel.  When
the  paramedics arrived, they were initially unable  to
free   Smith  from  the  wreckage.   While  they   were
collecting  additional rescue equipment, Smith  managed
to free himself.  He crawled to a nearby ambulance, got
in, and attempted to drive away.  But as Smith tried to
maneuver the ambulance, he got the cab of the ambulance
entangled  in  a low-hanging power line  which  brought
the  ambulance  to  a halt.  Emergency  personnel  then
removed Smith from the drivers seat, strapped him to  a
gurney, and took him to the hospital  where he required
surgery for a ruptured spleen.
          As  noted  above, the damage to the municipal
pickup  truck  was  $5000.  The damage  to  the  second
pickup  truck was $10,000 (a total loss).  In addition,
Smith caused $1000 of damage to the ambulance and $6000
of  damage  to  the  utility pole and its  accompanying
electrical transformer.
          Based on these events, Smith was charged with
two  counts of first-degree vehicle theft, three counts
of  second-degree criminal mischief, and driving  under
the influence in case number 3PA-04-2986 Cr.
          As  part  of the omnibus plea agreement  that
resolved the first five of Smiths criminal cases, Smith
pleaded  no contest to first-degree vehicle theft,  and
to  a  reduced charge of reckless driving (in place  of
the  driving under the influence charge); all the other
charges were dismissed.
          (We note that, even though the plea agreement
called  for  Smith to be convicted of reckless  driving
instead  of driving under the influence, the  judgement
issued  by  the  superior court states that  Smith  was
convicted  of driving under the influence.  Smith  does
not  complain  of this discrepancy on appeal.   If  the
superior  court in fact made a mistake, Smith can  seek
relief  in  the  superior court under  Alaska  Criminal
Rule 35(a).21)
          On  August 24, 2004 (i.e., roughly five weeks
after this first criminal episode), a woman called  the
Alaska State Troopers to report that her home had  been
          ransacked and her vehicle stolen.  Subsequent
investigation revealed that Smith had been walking down
a  power line trail and had stopped at the womans house
to  get  a drink of water from an outside hose.   Smith
then decided to break into the residence.  Once inside,
Smith  rummaged through a file cabinet  and  some  desk
drawers, where he found $150 in cash and the keys to  a
pickup  truck   all  of  which he  took.   Smith  later
abandoned the stolen truck at an apartment complex.
          Based on these events, Smith was charged with
first-degree  burglary,  first-degree  vehicle   theft,
third-degree theft, and fifth-degree criminal  mischief
in case number 3PA-05-410 Cr.
          Under  the  terms  of  Smiths  omnibus   plea
agreement  with the State, Smith pleaded no contest  to
first-degree  burglary,  and  the  other  charges  were
          On  August  25, 2004 (i.e., the day following
Smiths  commission of the just-described  burglary  and
vehicle theft), another woman called the state troopers
to  report  that her vehicle had been stolen  from  her
residence.   Later  that evening, the Anchorage  police
were summoned to the scene of a single-vehicle accident
near  Eagle River.  When they arrived, they  found  the
womans  stolen vehicle in a ditch.  Inside the  vehicle
were  eight  firearms, as well as  burglary  tools  and
          Subsequent investigation revealed that  Smith
(accompanied by some other youths) had been driving the
car.   The  car  went into the ditch  when  Smith  fell
asleep  behind  the wheel.  After the crash,  witnesses
saw Smith flee on foot.
          Of the eight firearms found in the stolen car
on  the  evening of August 25th, one had been  reported
stolen in a burglary the previous week, and four others
were   later  reported  stolen  in  a  burglary   that,
according  to the homeowner, occurred sometime  between
the morning of August 25th and August 27th.
          Several   weeks  later,  after   the   police
arrested  Smith on unrelated charges, he  confessed  to
having  committed the vehicle theft and  one  of  these
          Based on these events, Smith was charged with
first-degree burglary, first-degree vehicle theft,  and
four  counts of second-degree theft (i.e., theft  of  a
firearm) in case number 3PA-04-2787 Cr.
          Under  the  terms  of  Smiths  omnibus   plea
agreement  with the State, Smith pleaded no contest  to
first-degree  burglary and one count  of  second-degree
theft; the other charges were dismissed.
          On  September  13, 2004, the  state  troopers
responded to the report of an armed robbery at  a  home
outside  of  Wasilla.  The homeowner told the  troopers
that  three people broke into his residence during  the
day  and were still there when he returned home.   When
the  homeowner  entered the house,  one  of  the  three
later  identified as Smith  pointed a gun  at  him  and
addressed him by name, telling him, Freeze, Bill.   The
homeowner tried to close the door and hold it shut, but
he  ceased resisting when Smith told him, I am going to
shoot you, Bill.  I have a gun.
          The  robbers then placed a pillow  case  over
the homeowners head and secured it around his neck with
packing  tape.  They also bound his hands with  packing
tape and secured his feet with a belt.
          The  robbers stole the homeowners  ATM  card,
$3000  in cash, $3500 worth of jewelry, three handguns,
and  a  video  camera.  Using knives, they slashed  the
homeowners  leather  couches.   They  also   took   the
homeowners  truck.  This vehicle was found  later  that
same  day  near Mud Lake; it had been totally destroyed
by  fire.  Smith later told the police that he  decided
that  he  had to burn the truck because his accomplices
had not worn gloves (and thus had left fingerprints  in
the vehicle).
          Based on these events, Smith was charged with
first-degree  robbery,  first-degree  burglary,  third-
degree  assault, first-degree vehicle theft, two counts
of   second-degree  theft,  and  third-degree  criminal
mischief in case number 3PA-04-2791 Cr.
          Under  the  terms  of  Smiths  omnibus   plea
agreement  with the State, Smith pleaded no contest  to
first-degree robbery, first-degree vehicle  theft,  and
third-degree  assault;  all  the  other  charges   were
          A  little after two oclock in the morning  of
September 19, 2004, the Palmer police received a report
of  a  vehicle on the Palmer-Wasilla Highway  that  was
swerving all over the road, with people dangling out of
the  windows.   The  officer  who  was  dispatched   to
investigate soon spotted the vehicle and made a traffic
stop.  There were four people in the car; Smith was the
passenger in the front seat.
          Smith  falsely  identified  himself  as   his
cousin,  Jason Walker.  But when Walker was  unable  to
provide his social security number, and when he gave  a
place  of birth that did not match the computer records
for the real Jason Walker, the officer placed Smith  in
handcuffs  and patted him down for weapons.  In  Smiths
right  front pocket, the officer found a plastic baggie
containing  several  9-mm bullets.   Later,  after  the
driver  of the car gave the police permission to search
the  vehicle,  the police found a 9-mm Witness  handgun
under the seat where Smith had been sitting.
          The two passengers in the back seat were both
minors.   The  minors told the police  that  Smith  had
provided them with alcoholic beverages.
          Based on these events, Smith was charged with
third-degree    weapons   misconduct,   giving    false
information  to  a police officer with  the  intent  of
implicating  another,  and  two  counts  of  furnishing
alcoholic  beverages to a minor in case number  3PA-04-
2788 Cr.
          Under  the  terms  of  Smiths  omnibus   plea
agreement  with the State, Smith pleaded no contest  to
third-degree weapons misconduct, and the other  charges
were dismissed.
          We  now  come  to Smiths sixth criminal  case
the  one case that was not included in the omnibus plea
          On  October 13, 2005, while Smith was in jail
awaiting  trial  on  these  various  charges  described
above, the superior court granted his request for a one-
day  release from custody so that he could  attend  his
fathers  funeral.   The following day  (October  14th),
Smith  was released to the custody of his mother  on  a
$100,000    unsecured   bond   and   under   electronic
monitoring.   The  court directed Smith  to  return  to
custody  by  nine  oclock  that evening.  Approximately
thirty minutes before this deadline, Smith cut off  the
ankle  bracelet that monitored his geographic position,
and he then absconded.
          On  October 21st, while Smith was on the run,
the  state  troopers received a report of a residential
burglary  in  which two handguns (a Para-Ordinance  .45
and  a Colt 10-mm) were stolen.  That same evening, the
state Fugitive Task Force (a combination of federal and
state  law  enforcement officers) located  Smith  at  a
house   in   Wasilla.   Smith  initially   refused   to
surrender,  but  negotiators finally convinced  him  to
give  himself up.  Following his arrest, Smith informed
the authorities where to find the two handguns that had
been stolen in the burglary earlier that day.
          Based on these events, Smith was charged with
violating the conditions of his felony release,  first-
degree burglary, two counts of second-degree theft, and
fourth-degree criminal mischief in case number  3PA-05-
2842 Cr.
          Smith  ultimately  reached  a  separate  plea
agreement with the State concerning these charges:   he
pleaded no contest to violating the conditions  of  his
release, first-degree burglary, and one count of second-
degree  theft, in exchange for dismissal of  the  other
charges  and an agreed-upon sentence cap of 4 years  to
  (B)  Smiths background before these six cases

          Smith is apparently quite intelligent, but he
has been in trouble with the law since early 1999, when
he  was  twelve  years old.  Smith  was  adjudicated  a
delinquent  minor for several thefts,  trespasses,  and
criminal  mischiefs committed in February 1999.   While
on  probation, he committed criminal mischief again  in
December  1999,  which  was  informally  adjusted.   He
violated  his juvenile probation again in  March  2000,
but  the court continued his probation.  However, Smith
was  institutionalized  i.e., sent to McLaughlin  Youth
Center   after  he  committed two  burglaries,  second-
degree  theft, second-degree criminal mischief, escape,
and assault during the last four months of 2000.
          In  December 2002, the superior court entered
another institutionalization order against Smith, after
he committed second-degree escape.

  (C)  The two sentencings

          In  March  2006, Smith was sentenced  on  the
first  five  of  his cases (i.e., all  of  the  charges
except  the  ones  stemming from  Smiths  October  2005
flight  from  custody).  (At the  time  of  this  first
sentencing, the sixth criminal case had been filed, but
Smith  had  not  yet been indicted on  those  charges.)
Smith  was  sentenced for his October 2005 offenses  in
November 2006.
           The  author of the pre-sentence report  that
was  prepared  for Smiths first sentencing  (the  March
2006 sentencing) concluded that isolation should be the
superior courts primary goal in sentencing Smith  since
neither   probation   nor   institutionalization   with
treatment [have been] successful in reforming Smith  or
even  deterring  him.   The  pre-sentence  investigator
     [Smiths]  calculated  approach  to   ...
criminal activity and his inclusion of others
[in  these  activities] is  ...  frightening.
His  behavior  has escalated in  seriousness,
[and at] this juncture, the communitys safety
can   only   be  ensured  [by]  his   lengthy

     In 16 years of working with juveniles in
a  treatment setting[,] and with adults in  a
probation  setting, this  officer  has  never
[before]  held the belief that deterrence  of
any defendant was not possible.  However,  in
this  case[,]  the defendant  appears  to  be
incorrigible.   He  has  no  regard  for  the
safety   of   community  members   or   their
property.    He   does   not   do   well   on
supervision[,  and  he]  does  not   actively
engage in treatment while incarcerated.

          As   explained  above,   the   plea
agreement  that  resolved Smiths  first  five
cases  required him to plead  no  contest  to
nine  different offenses  eight felonies  and
one misdemeanor.  These were:
          Case  number 3PA-04-2986 Cr  first-
     degree   vehicle  theft   (a   class   C
     felony)22 and reckless driving  (a  non-
     classified   misdemeanor   carrying    a
     maximum sentence of 1 year);23
          Case  number 3PA-05-410 Cr   first-
     degree burglary (a class B felony);24
          Case  number 3PA-04-2787 Cr  first-
     degree  burglary (a class B felony)  and
     second-degree   theft   (a    class    C
          Case  number 3PA-04-2791 Cr  first-
     degree  robbery  (a class  A  felony),26
     first-degree vehicle theft  (a  class  C
     felony),  and  third-degree  assault  (a
     class C felony);27 and
          Case  number 3PA-04-2788 Cr  third-
     degree  weapons misconduct  (a  class  C
          Of  Smiths nine offenses  in  these
five cases, the most serious was the class  A
felony  of first-degree robbery.  This  crime
carried   a  maximum  penalty  of  20   years
imprisonment.29  Under former AS 12.55.155(a)
(the  pre-March  2005 version),  Smith  could
receive this 20-year maximum sentence because
he conceded that the State could prove two of
the    aggravating    factors    listed    in
AS  12.55.155(c):  (c)(19)   that  Smith  had
been  adjudicated  a  delinquent  minor   for
conduct that would have been a felony had  he
been  an  adult; and (c)(21)  that Smith  had
previously  repeatedly  engaged  in   similar
criminal conduct (i.e., his previous thefts).
          (Smith further conceded that, under
the  facts of his case, these two aggravating
factors were Blakely-compliant.)30
          Smiths  next most serious  offenses
were the two class B felonies of first-degree
burglary.   These  crimes carried  a  maximum
sentence of 10 years imprisonment.31   Again,
Smith  was eligible for this maximum  penalty
because   of  the  two  conceded  aggravating
          Superior  Court  Judge  Beverly  W.
Cutler  was  the sentencing judge  in  Smiths
case.   She  had  also  been  the  judge  who
handled Smiths delinquency matters.  As Judge
Cutler  noted  toward the  beginning  of  her
          sentencing remarks, she had been dealing with
Smith since he was thirteen years old.
          Based  on  Smiths juvenile  history
and  his  current  series  of  crimes,  Judge
Cutler   told   Smith  that   it   would   be
unrealistic  to  indulge once  again  in  the
notion  that, somehow, you dont  really  mean
[to  do]  evil, and [that] this is just  some
sort  of  teenage  acting-out  behavior  that
youre  going  to change.  The judge  declared
that  Smiths behavior [had] gone from bad  to
very, very much worse.
          Judge   Cutler  acknowledged   that
Smith  had  not  committed  any  unclassified
felonies  (such as a murder or a first-degree
sexual  assault)   although  she  noted  that
Smiths   armed  robbery  had  been  extremely
serious.  She then explained why she believed
that  only  a  lengthy term  of  imprisonment
could  protect the public from Smiths further
criminal conduct:

     The  Court:  [This] Court ha[s]  already
spent  ...  five  years  attempting  [Smiths]
rehabilitation, ... attempt[ing] it in  every
single imaginable way.  And we indulged  over
and   over  and  over  again  in  the  [views
expressed  by Smiths defense attorney  today]
that,  ... as a society, we would really  ...
prefer not to be unduly punitive, and to help
people   be   more  functional  [members   of
     .  .  .

     But  [our]  society  ...  has  [already]
tried  every conceivable method of attempting
[to get Smith] to help [him]self ... .

     I  dont  think  I will ever  forget  the
surprise  and  shock, really, [that]  I  felt
when  you ... came in [to juvenile court]  on
your  first crimes, and it was described what
...  you  had  done in the city of  Palmer[:]
...  the number of businesses you broke into,
the  way  you  broke  into those  businesses,
[and]  the  things you chose to do  with  the
things you [stole].

     I  certainly hope ... that  ...  by  the
time you are 30 [or] 35, ... you will be more
cognizant  of what you need to do to  control
your  behavior,  so that you  can  live  with
other  people without just grabbing what  you
want, doing [whatever] you think ... you  can
get  away  with ... .  But Im going to  guess
that youll be 35 to 40 years old before youre
really brought around.

          Judge  Cutler declared that  Smiths
criminal  record  was certainly  one  of  the
worst records that this Court has [seen] that
doesnt  include  homicide or sexual  assault.
And  she  expressed  her agreement  with  the
conclusion  of the pre-sentence  investigator
that  it  would be fruitless to put Smith  on

     The  Court:   I  think  that  the  [pre-
sentence  investigator]  is  probably   quite
insightful and prescient when she says [that]
there is no point [in] suspending ... half of
[Smiths  sentences]  and placing  [Smith]  on
probation.   Weve been doing  that  for  five
years.    Theres  no  point  in  doing   that
anymore.  ...  [I]t just doesnt seem to me to
make  sense to impose anything [but  time  to
serve]  here.   ...  [T]hat  [does  not  mean
that]  the  key  has been thrown  away.   It,
rather, recognizes that the parole system  is
the  best system, at this point in time,  for
determining   how  [Smiths]  transition   [to
society] should go, [and] when [Smith should]
finally get out of jail ... .

          Despite      these      pessimistic
conclusions,  Judge  Cutler  also   expressly
acknowledged  that it was her  duty  to  make
sure that Smiths individual sentences for the
nine  crimes  did  not add  up  to  something
[excessive].   The  judge  then  imposed  the
following  sentences.  All of  the  terms  of
imprisonment listed here are unsuspended, and
the  sentences in each of the five  different
cases are consecutive to each other:
          Case  Number 3PA-04-2791:  8  years
     for   the  robbery,  plus  a  concurrent
     2  years  for the accompanying  assault.
     Judge  Cutler also imposed a consecutive
     1  year  for the vehicle theft  in  this
     case   the  vehicle theft that ended  in
     Smiths  destruction of the car by  arson
     because  this  offense was an  extremely
     serious vehicle theft;
          Case  Number 3PA-04-2986:   1  year
     for  the vehicle theft and a consecutive
     6   months   for   driving   under   the
          Case  Number 3PA-05-410:   2  years
     for the burglary;
          Case  Number 3PA-04-2787:  2  years
     for  the  burglary, and a  concurrent  1
     year for the theft; and
          Case Number 3PA-04-2788:  18 months
     for the weapons misconduct.
          Judge   Cutler  acknowledged   that
these  individual sentences totaled 16  years
to  serve.   However, she asserted that  this
lengthy  composite  sentence  was  justified,
given Smiths huge number of offenses.
          As    already   explained,   Smiths
sentencing in case number 3PA-05-2982 Cr (the
offenses Smith committed when he absconded in
mid-October  2005)  took  place  in  November
2006, eight months after his first sentencing
          A   different   probation   officer
prepared  an updated pre-sentence report  for
this  sentencing.   This second  pre-sentence
investigator likewise concluded  that  Smiths
prospects  for  rehabilitation  were  minimal
because  Smith  has never  been  deterred  by
prior  actions  of the [superior  court]  and
because  Smith  has  not  performed  well  on
previous periods of juvenile probation.   The
pre-sentence  investigator  also  noted  that
Smith had a lengthy history of attempting  to
flee  from [judicial] sanctions, as evidenced
by  [his]  multiple escape convictions  as  a
juvenile,  as well as the present offense  in
which [Smith] used the death of his father to
facilitate his escape from custody.
          The    pre-sentence    investigator
concluded  that nothing would be gained  from
sentencing   Smith   to   further   probation
supervision, and that isolation was the  only
Chaney  sentencing criterion that  the  court
should consider.32
          As  already explained, Smiths  plea
agreement  with the State in this sixth  case
called for Smith to be convicted of one class
B felony (first-degree burglary), one class C
felony (second-degree theft), and one class A
misdemeanor  (violating  the  terms  of   his
felony release),33 with a sentence cap  of  4
years to serve.
          Smiths attorney conceded that Smith
should  receive  4 years to serve  for  these
offenses,  but  the  defense  attorney  asked
Judge  Cutler to make this 4-year term either
wholly   or  partially  concurrent   to   the
sentences that Smith had already received  in
the other five cases.
          Judge  Cutler rejected this request
for  concurrent sentences.  She declared that
Smith   was  incorrigible  and  that   Smiths
          sentences for his October 2005 offenses
should be imposed consecutively to his  other
sentences  because the October  2005  charges
represent  different crimes in  a  [separate]
crime spree.
          She then sentenced Smith to 2 years
for the burglary, 1 year for the theft, and 1
year  for  violating the  conditions  of  his
release   all consecutive to each other,  and
all  consecutive to the sentences that  Smith
had  received  in  the other  five  cases  in
          Thus,   Smiths  composite  sentence
(his  total sentence for all twelve  offenses
encompassed  in  his  six  separate  criminal
cases) is 20 years imprisonment.

(D)  Why we conclude that Smiths composite sentence
is not excessive

          In    challenging   his   20-year   composite
sentence,  Smith first argues that Judge Cutler  failed
to  make  sufficient findings to support this sentence.
Specifically,  Smith argues that, before  Judge  Cutler
could  properly  impose a composite  term  longer  than
10  years to serve, the judge needed to make an express
finding  that this lengthier sentence was justified  by
extraordinary  circumstances  or  weighty   aggravating
          Smiths  argument  is  partly  based  on   the
American Bar Associations recommendation that sentences
of  imprisonment should normally not exceed  10  years.
The  Alaska  Supreme Court endorsed the ABAs  suggested
ceiling  on  felony sentences in Donlun v.  State,  527
P.2d  472,  475  (Alaska 1974).   (At  that  time,  the
suggested ceiling was 5 years imprisonment.)  And  this
Court  issued several decisions in the 1980s  endorsing
the ABAs sentencing guideline (which, by then, had been
increased to 10 years imprisonment).  But all of  these
decisions were disapproved by the Alaska Supreme  Court
in  State v. Bumpus, 820 P.2d 298 (Alaska 1991), a case
involving  a  defendant  who engaged  in  a  series  of
burglaries and thefts.  Here is what the supreme  court
          Citing its own decisions and this courts
     decision  in  Pears v. State, 698  P.2d  1198
     (Alaska  1985), the court of appeals asserted
     [below]   that   the  sentencing   goals   of
     rehabilitation, deterrence, and reaffirmation
     of  societal norms will almost invariably  be
     satisfied by imposition of a sentence of  ten
     years  or  less.  [Bumpus v. State, 776  P.2d
     329,  335  (Alaska App. 1989).]   ...   [T]he
     court   [of  appeals]  concluded  that   [the
     sentencing]   goals   [of   deterrence    and
     community  condemnation] could never  support
     imposition   of   [the]   twenty-three   year
     aggregate  term [of imprisonment  imposed  in
     Bumpuss case].  Id.
     The [court of appeals] conclusion is  no
longer  valid  in  the wake  of  this  courts
decision  in  State v. Wentz,  805  P.2d  962
(Alaska 1991), where we stated that dicta  in
Pears  purporting to limit the  circumstances
under  which sentences may exceed  ten  years
could  not  be applied beyond the  particular
facts of that case.  [Wentz, 805 P.2d] at 966
n. 5.

     Wentz  established that it is no  longer
appropriate for courts to rigidly define  the
length  of sentence that can be justified  by
any  particular criterion, provided that  the
sentence  is  ultimately  within  the   range
allowed by the legislature.

Bumpus, 820 P.2d at 302 (footnote omitted).
          Nine  years  later, in  Griffin  v.
State,  9  P.3d 301, 308 (Alaska App.  2000),
this   Court   expressly   acknowledged   and
confirmed that the supreme courts decision in
Bumpus  had  abrogated  the  earlier  10-year
sentencing  guideline.   Thus,  Judge  Cutler
needed  no special justification to impose  a
composite  sentence  exceeding  10  years  to
          Next,   Smith  argues  that   Judge
Cutler  never found that Smith  was  a  worst
offender  (as that term has been  defined  in
the  sentencing decisions of this  Court  and
the  Alaska Supreme Court) before she imposed
a  composite  20 years to serve   a  sentence
equal  to  the  maximum term of  imprisonment
that Smith could have received for his single
most  serious crime, the class  A  felony  of
first-degree robbery.
          Smith is apparently relying on  the
rule  that  [g]enerally, a  maximum  sentence
cannot be imposed without some foundation for
characterizing a defendant as the worst  type
of  offender.34  But Smith did not receive  a
maximum  sentence  (or anything  close  to  a
maximum  sentence) for any of  his  offenses.
Indeed,  the 16-year composite sentence  that
Smith  received at his first sentencing  (the
one  held  in March 2006) for his first  five
criminal  cases  was less  than  the  20-year
maximum  that he might have received for  his
          single most serious offense, first-degree
          True, Smith was later indicted  for
the  offenses in case number 3PA-05-2982  Cr,
and  he later received an additional 4  years
imprisonment in that case (at the  sentencing
held  in November 2006).  But as Judge Cutler
noted   at  that  second  sentencing,  Smiths
crimes  in  this  sixth  criminal  case   the
crimes  he committed after he absconded  from
bail release in October 2005  were completely
separate   from   the   series   of    crimes
encompassed in his other five criminal cases.
          Smith points to no decision of this
Court  or of the Alaska Supreme Court holding
that a worst offender finding is required  to
support   a  defendants  combined  total   of
imprisonment imposed at different  sentencing
hearings in completely unrelated cases.
          Moreover, even assuming that  Judge
Cutler   needed  to  make  a  worst  offender
finding  before she sentenced  Smith  to  the
final 4 years of imprisonment at the November
2006   sentencing,   this   requirement   was
          Although  Judge  Cutler  may  never
have  uttered the words worst offender,  both
the  Alaska Supreme Court and this Court have
repeatedly  stated  that  we  will  uphold  a
maximum sentence if the record shows that the
sentencing judge implicitly made the required
finding.35   Here, as we have already  noted,
Judge Cutler found at Smiths first sentencing
(the  one held in March 2006) that Smith  had
not   responded  to  five  years   worth   of
rehabilitative  efforts  and  that  he   had,
instead, proceeded to commit a huge number of
new  crimes.   The  judge concluded  that  it
would  be  fruitless  to  release  Smith   on
probation again, and that Smith was  unlikely
to  stop  committing crimes until he  reached
early middle age.  Moreover, at Smiths second
sentencing  (the one held in November  2006),
Judge   Cutler   declared  that   Smith   was
          These findings and conclusions  add
up  to an implicit finding of worst offender,
if one was needed.
          Smith   next   argues   that    his
composite   sentence   violates   the    rule
announced  by this Court in Farmer v.  State,
746  P.2d  1300  (Alaska  App.  1987).  Under
Farmer,  a  judge who is sentencing  a  first
felony  offender must have good reason before
imposing  a  composite sentence that  exceeds
          the Austin limit for the defendants single
most serious offense.  Id. at 1301-02.
          (See Austin v. State, 627 P.2d 657,
657-58 (Alaska App. 1981), where we held that
a  defendant  convicted  of  a  first  felony
offense  for  which  no presumptive  term  of
imprisonment  is specified should  ordinarily
receive  a sentence more favorable  than  the
presumptive  term enacted by the  legislature
for a second felony offender convicted of the
same  offense.   The Austin  rule  was  later
codified in former AS 12.55.125(k)(2).)
          Application  of  Farmer  to  Smiths
case  is problematic because the Austin  rule
did  not  apply to Smiths sentencing for  his
most  serious offense, first-degree  robbery.
As  just  explained, the Austin rule  applied
only  when a first felony offender was  being
sentenced for a felony that did not  carry  a
presumptive term for first felony  offenders.
First-degree robbery is a class A felony and,
even  under  the pre-2005 version of  Alaskas
presumptive sentencing law, class A  felonies
carried  presumptive terms for  first  felony
          Smith appears to be arguing that we
should  hold, by analogy to the Austin  rule,
that Judge Cutler had to have good reason  to
impose a composite term that exceeded the 10-
year  presumptive term specified  for  second
felony  offenders convicted  of  first-degree
robbery.   But  even if Smith  were  correct,
there is abundant good reason in his case.
          First, Smith conceded the existence
of     two    aggravating    factors    under
AS  12.55.155(c):  (c)(19) and  (c)(21).   In
Randall  v.  State, 44 P.3d 984, 985  (Alaska
App.  2002),  we held that the  existence  of
statutory  aggravators constitutes  the  good
reason  or  good  cause required  by  Farmer.
Thus, even under the rule Smith proposes, the
presence of these aggravators would authorize
Judge  Cutler  to  impose  a  sentence   that
exceeded Smiths suggested 10-year ceiling.
          Second, as we noted above, the good
reason  required by Farmer does  not  require
proof  of any particular aggravator under  AS
12.55.155(c).    Rather,  good   reason   can
consist  of  other  factors.   Here,   Smiths
crimes  involved many different victims,  and
they  comprised  discrete  criminal  episodes
spread  out  over a period of months.   These
factors constitute good reason under Farmer.
          Finally,  Smith argues that,  given
the  case  law, [his] youth, and [his  prior]
lack of adult criminal history, his composite
sentence should not have exceeded 10 years to
serve,  or perhaps 15 years with some  of  it
          We  acknowledge  that  Smith  is  a
youthful  first  felony  offender,   and   we
further acknowledge that, normally, one would
not  expect a youthful first felony  offender
to  receive a composite sentence of 20  years
to  serve for crimes that did not involve the
infliction  of  serious  injury   or   sexual
assault.  But Smith is not a typical youthful
first felony offender.
          First,  Smith was sentenced  for  a
total  of  ten  felonies and two misdemeanors
stemming from six discrete criminal episodes.
          Second,  as explained above,  Smith
has  been under state supervision for a great
deal   of  his  life  since  he  was   twelve
beginning  with juvenile probation,  followed
by  juvenile institutionalization, then  jail
(awaiting  trial  in his first  five  cases),
followed by a brief interlude of freedom when
he  absconded while on bail release, and then
a  return  to  jail. Despite the  efforts  of
probation  officers and the  juvenile  court,
Smiths  history when not in custody has  been
one of repeated burglary and trespass, theft,
and criminal mischief.  Moreover, his conduct
while  in  custody has included  two  flights
from  custody:   an  escape  committed  as  a
juvenile, and his act of absconding while  on
bail release in October 2005.
          Repeated   judicial   interventions
have not reformed Smith or even deterred him.
In  fact, as Judge Cutler noted at the  March
2006  sentencing hearing, Smiths conduct  has
gone  from bad to very, very much worse.   In
his  repeated burglaries, Smith has  shown  a
continued interest in stealing firearms;  and
in  case  number 3PA-04-2791 Cr, his  conduct
escalated from theft to armed robbery.
          Equally    telling    is     Smiths
manipulation of the system after being jailed
for  his  first five criminal cases.   Taking
advantage  of compassionate leave  i.e.,  his
temporary  release  on  bail  to  attend  his
fathers  funeral  Smith absconded and quickly
resumed   his   wonted  criminal  activities:
burglary  and  theft of firearms.   The  fact
that Smith committed these new felonies while
on  bail  release  from  his  earlier  felony
charges   is  an  aggravating  factor   under
AS 12.55.155(c)(12).  And this final criminal
escapade  is  what prompted Judge  Cutler  to
declare Smith incorrigible.
          In  Shagloak  v.  State,  582  P.2d
1034,  1039-1040  (Alaska 1978),  the  Alaska
Supreme  Court upheld a sentence of 15  years
to  serve  for  a  defendant convicted  of  a
single    residential   burglary.    Shagloak
entered  an  apartment in the  early  morning
hours,   when  the  residents  were   asleep.
However, he apparently was not armed, and  he
stayed  for  only a few minutes,  grabbing  a
ring,  some  currency, and the  wifes  purse.
Id. at 1038.
          In  upholding  this  sentence,  the
supreme   court  noted  that   Shagloak   had
compiled  a lengthy criminal record over  the
preceding  seven years:  six burglaries,  one
escape,   one  larceny,  and   one   act   of
defrauding  an  innkeeper  (i.e.,  absconding
without  paying).  Id. at 1039.  The  supreme
court declared:

     [This]   record   clearly   demonstrates
Shagloaks  propensity for criminal  activity.
He  has  not been discouraged by more lenient
sentences.   ...   [Shagloaks present]  crime
was   a  serious  offense  committed   by   a
dangerous,    compulsive    offender,    thus
warranting  deviation from [normal sentencing
guidelines].   In  this case,  the  fifteen[-
]year sentence was not excessive.

Shagloak, 582 P.2d at 1039.
          Likewise,  in Griffin v.  State,  9
P.3d  301  (Alaska  App.  2000),  this  Court
upheld  a composite sentence of close  to  23
years  imprisonment for a  defendant  with  a
long history of burglaries and thefts who was
sentenced for a number of class B and class C
felonies  arising from two separate  criminal
episodes  that  occurred approximately  three
weeks apart.
          In  the  present  case,  Smith  was
sentenced for armed robbery in addition to  a
series  of  burglaries and  thefts.   Despite
being a teenager at the time of these crimes,
Smith  already  had  a  lengthy  history   of
convictions   and  unavailing   attempts   to
supervise and rehabilitate him.  Judge Cutler
concluded  that  Smith was  a  dangerous  and
impulsive offender who could not be  reformed
or deterred, at least until he reached middle
age.  The record supports these conclusions.
          The  question before us is  whether
Smiths  composite sentence  of  20  years  to
serve is clearly mistaken.36  On this record,
          we conclude that this composite sentence is
not  clearly  mistaken.  We therefore  AFFIRM
the   sentencing  decision  of  the  superior

1  See  SLA  2004,  ch.  125,  2, 7  (repealing  the  former
provisions) and  3 (enacting the new statute).

2 See SLA 2004, ch. 125,  8.

3 This new restriction on sentence appeals was enacted by SLA
2005, ch. 2,  7.  Pursuant to  33 of that same session  law,
the restriction took effect on March 23, 2005.

4See Sanders v. State, 718 P.2d 167, 168 (Alaska App. 1986).

5See Jackson v. State, 31 P.3d 105, 107-08 (Alaska App.
2001);  Griffin v. State, 9 P.3d 301, 308 (Alaska  App.

6See Jennings v. State, 713 P.2d 1222, 1223 (Alaska App.

7  See,  for  example,  the minutes of the  House  Judiciary
Committee  for April 14, May 8, and May 9, 2003.   At  these
three   committee  hearings,  members  of  the  bar,   other
citizens,  and several committee members expressed hesitance
concerning, or outright opposition to, various provisions of
the  bill.   The  portions of the bill that  drew  the  most
opposition were:  (1) provisions that would have altered the
burden  of  proof on the defenses of self-defense,  heat  of
passion, and defense of others, so that a criminal defendant
would have to prove these defenses by a preponderance of the
evidence;  (2)  a provision that would have  restricted  the
right  of a person to claim self-defense if the person  came
armed  to  a confrontation; (3) a provision that would  have
restricted the ability of a spouse, parent, or family member
of  an  arrestee  to hire an attorney to  consult  with  the
arrestee before or during any police interrogation,  if  the
arrestee had not personally asked for the assistance  of  an
attorney;  (4)  a  provision  that  would  have  required  a
prosecutor  to be present whenever a witness in  a  criminal
case  claimed  the privilege against self-incrimination  and
wished to explain the basis of that claim of privilege to  a
judge  in  camera;  and  (5)  a provision  that  would  have
prohibited the bifurcation of felony DUI trials, so  that  a
jury  would learn of the defendants prior convictions before
the jury decided whether the defendant was guilty of driving
under the influence on the occasion in question.

8 Minutes of the House Judiciary Committee for April 14, 2003,
Tape 03-38, Side B.

9 Minutes of the House Judiciary Committee for April 14, 2003,
Tape 03-38, Side B, Log Nos. 2226 to 1958.

10  Minutes of the House Judiciary Committee for May 9, 2003,
Tape 03-58, Side B, Log Nos. 2320-2219.

11  Id. at Log Nos. 2219 - 2132.

12  Minutes of the House Judiciary Committee for March 19,
2004, Tape 04-42, Side B, Log Nos. 1748-1514.

13  Minutes of the House Finance Committee for April 21,
2004, Tape HFC 04-92, Side B.

14  See footnotes 12 and 13.

15  Minutes of the House Judiciary Committee for March 30,
2004, Tape 04-53, Side A, Log No. 1266.

16  Id. at Log Nos. 1266-1359.

17  Id. at Log No. 1359.

18  Id. at Log Nos. 1359-1529.

19  Id.

20706 P.2d at 714.

21See  Bishop  v. Anchorage, 685 P.2d 103, 105 (Alaska  App.

22  AS 11.46.360(c).

23  AS 28.35.400(b).

24  AS 11.46.300(b).

25  AS 11.46.130(c).

26  AS 11.41.500(b).

27  AS 11.41.220(d).

28  AS 11.61.200(i).

29  AS 12.55.125(c).

30  See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004).

31  AS 12.55.125(d).

32  See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970)
(prescribing the criteria that a judge should use  when
assessing a criminal defendants sentence).

33  AS 11.56.757(b)(1).

34  Howell v. State, 115 P.3d 587, 592-93 (Alaska App. 2005),
quoting  State v. Wortham, 537 P.2d 1117, 1120  (Alaska
1975);  see  also  Hintz v. State, 627  P.2d  207,  210
(Alaska 1981).

35  See, e.g., Jacinth v. State, 593 P.2d 263, 267 (Alaska
1979)  ([T]here  is no requirement that the  sentencing
judge  utter  the phrase worst offender. );  Howell  v.
State,  115 P.3d 587, 593 (Alaska App. 2005); Napayonak
v. State, 793 P.2d 1059, 1062 (Alaska App. 1990).

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

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