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Tice v. State (12/19/2008) ap-2201

Tice v. State (12/19/2008) ap-2201

     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-9418
Appellant, ) Trial Court No. 3PA-04-00948 CR
v. ) O P I N I O N
Appellee. ) No. 2201 December 19, 2008
Appeal    from     the
          Superior   Court,  Third  Judicial  District,
          Palmer, Eric Smith, Judge.

          Appearances:   David  D.  Reineke,  Assistant
          Public  Defender, Kathleen Murphy,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Terisia   K.  Chleborad,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.
          Before:    Coats,  Chief  Judge,  Mannheimer,
          Judge,  and Stewart, Senior Court of  Appeals

          COATS,  Chief Judge.

          Bruce  Tice was convicted of manslaughter1 and  assault
in  the  first  degree.2  The charges arose out of a  single  car
          accident that killed a five-year-old child and injured a three-
year-old child who were passengers in the car.
          Tice  was convicted under the pre-March 2005 sentencing
provisions.  His two felony offenses, manslaughter and assault in
the first degree, are both class A felonies.  The maximum term of
imprisonment for a class A felony is 20 years.3  Tice was a third
felony  offender  for purposes of presumptive sentencing.   Under
the  pre-March  2005 sentencing provisions,  as  a  third  felony
offender,  Tice faced a presumptive term of 15 years imprisonment
for each class A felony.4
          At  Tices  initial sentencing hearing,  Superior  Court
Judge  Eric  Smith found that Tice had conceded  one  aggravating
factor:  that he knew or should have known that the victim of the
offense  was  particularly vulnerable because of extreme  youth.5
The presence of the aggravating factor authorized Judge Smith  to
increase the 15-year presumptive term to the maximum sentence  of
20  years  imprisonment.6   Judge Smith  sentenced  Tice  to  the
maximum  term  of 20 years for each of the felony  offenses.   He
imposed   15   years  for  the  first-degree  assault  conviction
concurrently   and  5  years  consecutively.   Therefore,   Tices
composite term of imprisonment was 25 years.
          In  our  previous decision in this appeal, we concluded
that Tice had not conceded the aggravating factor that he knew or
should have known that the victim of the offense was particularly
vulnerable because of extreme youth.7  We therefore remanded  the
case to Judge Smith for resentencing.8
          On  remand,  Judge  Smith again found  the  aggravating
factor  based  on  the evidence presented by the  State,  and  he
imposed the same composite 25-year sentence.  Judge Smith  stated
that  he  was determined to impose the 25-year composite sentence
as  the appropriate sentence for Tices crimes, even if this court
later  found  that  it was error to find the aggravating  factor.
Judge  Smith stated that, as an alternative, he would  impose  15
years  for  manslaughter and 15 years for assault  in  the  first
degree,  with  10 of those years consecutive to the  manslaughter

          The  applicability  of aggravator  (c)(5)  to
          Tices case
          Alaska   Statute  12.55.155(c)(5)  applies   when   the
defendant knew or reasonably should have known that the victim of
the   offense   was  particularly  vulnerable  or  incapable   of
resistance  due  to  advanced  age, disability,  ill  health,  or
extreme youth or was for any other reason substantially incapable
of exercising normal physical or mental powers of resistance.  As
noted  earlier,  Tices convictions arose  out  of  a  single  car
accident that killed one child and injured another.  Tice  argued
at  resentencing  and  now argues on appeal that  the  vulnerable
victim  aggravator does not apply in a case where the  defendants
conduct  was not aimed at a particular victim.  Tice argues  that
the  aggravator does not apply to him because he did not  exploit
or deliberately take advantage of the victims youth.
          Because  Alaska case law is silent on this  issue,  and
our  review of the legislative history of AS 12.55.155(c)(5)  has
          been unhelpful in this regard, we have looked to the history of a
similar  federal  sentencing guideline.  The  federal  guidelines
allow increased punishment [i]f the defendant knew or should have
known  that a victim of the offense was a vulnerable victim.9   A
vulnerable  victim is defined as a person ...  who  is  unusually
vulnerable due to age, physical or mental condition,  or  who  is
otherwise  particularly  susceptible to the  criminal  conduct.10
The  commentary  to  the 1993 version of the  federal  guidelines
provided  that  the  adjustment  applies  to  offenses  where  an
unusually vulnerable victim is made a target of criminal activity
by  the  defendant.11  This commentary led  to  a  split  in  the
federal  circuit courts on the question of whether this guideline
required  specific targeting of a victim because of  the  victims
vulnerability.12  In 1995, in order to remove this ambiguity, the
United   States  Sentencing  Commission  deleted  the   targeting
language from the commentary.13
          Because  of the sentencing commissions action,  it  now
appears that the federal courts would apply the vulnerable victim
guideline  to a case such as Tices  where the defendant  did  not
specifically   target   the  victim  because   of   the   victims
vulnerability.   However, the history of the federal  guidelines,
as  well as the fact that the federal courts were divided on  the
proper  interpretation  of this language  before  the  sentencing
commission  took action, suggest that the similar language  found
in   AS  12.55.155(c)(5)  could  reasonably  be  interpreted   in
different ways.  Accordingly, we might be obliged to resolve this
ambiguity against the government.14
          The  parties  to  this  appeal  have  not  briefed  the
legislative  history  of  aggravator  (c)(5)  or  offered   other
authority  from  Alaska  on  the correct  interpretation  of  its
language.   Moreover,  Judge  Smith unequivocally  expressed  his
intention  to sentence Tice to a composite term of 25 years,  and
proposed an alternative formulation of Tices sentence to  achieve
this  goal  in  the  event that this court held  that  aggravator
(c)(5) did not apply to the facts of Tices case.
          For  these  reasons, we have decided  not  to  adopt  a
definitive  interpretation of aggravator (c)(5)  in  Tices  case.
Instead,  we  will evaluate Tices sentence under the  alternative
formulation proposed by Judge Smith: a sentence of 15  years  for
manslaughter and a sentence of 15 years for first-degree assault,
of which 10 years is consecutive to the manslaughter sentence.

          Tices sentence was not clearly mistaken
          We review Tices composite sentence to determine whether
it  is  clearly mistaken.15  As we have previously  pointed  out,
Tice  was  a third felony offender and, under the pre-March  2005
sentencing  provisions, he faced a presumptive term of  15  years
imprisonment  for  each  of  his  manslaughter  and  first-degree
assault  convictions.  Prior to his current  offenses,  Tice  had
multiple   criminal   convictions.   These  included   a   felony
conviction  for  theft in the second degree, a felony  conviction
for  sexual  abuse of a minor in the second degree,  and  various
convictions for probation violations and driving offenses  one of
which  was for driving while intoxicated.  In addition, Tice  was
          discharged from the United States Navy under other than honorable
conditions.  He spent 18 months incarcerated while he was in  the
Navy  for  using  and selling drugs, vehicle theft,  writing  bad
checks, and being absent without leave.
          During  sentencing, Judge Smith noted that Tice  had  a
long  and difficult criminal history.  He also made the following
comments with respect to Tices current convictions:
          Tice  drank  enough beer to  be  just  barely
          below the legal limit when the blood test was
          taken after the accident.  He was driving  on
          a  bumpy  road  with  two little  girls,  one
          three,  one  five,  in  the  back  seat,  not
          buckled  in.   Ms. Maddux testified  credibly
          that  she was trying to get him to stop.   He
          was bouncing over the bumps because the girls
          were giggling, and they thought it was funny.
          He  lost  control of the car, the car rolled,
          and  not  to put too fine a point on  it,  he
          killed one of the little girls.
          Judge Smith pointed out that, although the other little
girl was not badly injured, it was just a matter of luck that she
wasnt badly hurt or killed like her older sister.  He found  that
after Maddux crawled out of the car and while she was holding her
dying  daughter, Tice urged her to tell the police that  she  was
driving,  not  him.  Judge Smith emphasized that  Tice  convinced
Maddux  to lie for him for a year and to take responsibility  for
the  death  of  her daughter.  Judge Smith concluded  that  Tices
ability  to  control  someone  like  he  had  controlled   Maddux
indicated that he was a very dangerous person.
          Based on Tices extensive prior criminal history and his
behavior during his current offenses, Judge Smith concluded  that
Tice  was a worst offender.  Judge Smith also concluded  that  it
was necessary to impose a composite sentence greater than the 20-
year  maximum sentence for a class A felony in order  to  protect
the  public.  (Under the Neal-Mutschler rule established  by  the
Alaska Supreme Court, a judge may not impose a composite sentence
for  two or more counts that exceeds the maximum sentence for the
most serious offense unless the judge affirmatively finds that  a
longer   term  of  imprisonment  is  necessary  to  protect   the
          Tice points out that his sentence is at the top of  the
range for offenders convicted of manslaughter and assault in  the
first  degree arising out of similar circumstances.  In 2004,  in
Powell v. State,17 we affirmed a 26-year sentence for convictions
on  four charges following a drunk-driving incident:  two  counts
of  first-degree assault, one count of reckless endangerment, and
one  count  of driving while intoxicated.18  Powell was  a  third
felony  offender for presumptive sentencing purposes and faced  a
presumptive  term of 15 years in prison for each  of  the  first-
degree  assault charges.19  He was sentenced to 25 years for  his
four offenses, and to 1 year of previously suspended time.20   At
that time, we acknowledged that Powells 26-year sentence exceeded
any we had previously affirmed, even for defendants convicted  of
          vehicular homicide.21
          Even  though Powell did not kill anyone, we  held  that
the  26-year  composite sentence was not clearly mistaken.22   We
noted   that   the   15-year  presumptive  term  represents   the
legislatures  judgment  as  to the prison  term  that  should  be
imposed  on a typical third felony offender who commits a typical
act  of first-degree assault.23  We concluded that Powell was not
a  typical  third  felony offender because  he  had  three  prior
felonies, was being sentenced for two first-degree assaults,  had
eleven prior convictions for driving while intoxicated as well as
several  other  criminal convictions, and had poor prospects  for
          Powell  had  one more felony conviction  and  ten  more
convictions for driving while intoxicated than Tice.  So, in that
respect, his record is more egregious than Tices record.  On  the
other  hand, Tices conduct, unlike Powells, resulted in a  death.
And  Tices conduct in intimidating Maddux is another factor  that
weighs  in  favor of a more severe sentence.  Judge  Smith  could
certainly  conclude that Tices pattern of behavior,  both  before
and  after  his  current  offenses, was particularly  odious  and
reflected   poorly   on  Tices  character   and   prospects   for
          We  accordingly  conclude  that  Judge  Smith  was  not
clearly mistaken in imposing a 25-year composite sentence.
          The  judgment  of the superior court is AFFIRMED,  with
the  exception  that the judgment must be amended  to  reflect  a
sentence of 15 years imprisonment for manslaughter and a sentence
of  15  years imprisonment for first-degree assault, of which  10
years is consecutive to the manslaughter sentence.
     * Sitting by assignment made pursuant to article IV, section
11 of the Alaska Constitution and Administrative Rule 23(a).

     1 AS 11.41.120(a)(1).

     2 AS 11.41.200(a)(1).

3 AS 12.55.125(c).

     4 Former AS 12.55.125(c)(4).

     5 AS 12.55.155(c)(5).

     6 Former AS 12.55.155(a)(2).

     7 Tice v. State, Alaska App. Memorandum Opinion and Judgment
No. 5286 at 6 (Dec. 26, 2007), 2007 WL 4554394 at *3.

     8 Id. at 7, 2007 WL 4554394 at *3.

9 U.S. Sentencing Guidelines Manual  3A1.1(b) (2008).

     10   Id.  3A1.1 cmt. 2 (2008).

     11   Id.  3A1.1 cmt. 1 (1993) (emphasis added).

     12    See United States v. Smith, 39 F.3d 119, 123 (6th Cir.
1994)  (Most  circuits require that the defendant  have  actually
targeted the victims because of their vulnerability.).

     13    U.S. Sentencing Guidelines Manual app. C, amend.  521,
at  415 (2008); see also United States v. Feldman, 83 F.3d 9,  16
(1st Cir. 1996).

     14    See,  e.g.,  State v. ABC Towing, 954  P.2d  575,  579
(Alaska  App.  1998) (noting that when the scope  of  a  criminal
statute  is unclear, courts should normally construe the  statute
against  the government); Magnuson v. State, 843 P.2d 1251,  1253
(Alaska App.1992) (same).

     15   McClain v. State, 519 P.2d 811, 813 (Alaska 1974).

16    Powell  v.  State,  88  P.3d 532, 537  (Alaska  App.  2004)
(citing Neal v. State, 628 P.2d 19, 21 (Alaska 1981)).

     17   88 P.3d 532.

     18   Id. at 533-34.

     19   Id. at 533.

     20   Id.

     21   Id. at 539 (citing Pusich v. State, 907 P.2d 29 (Alaska
App.  1995) (upholding a composite sentence of 18 years to  serve
for  manslaughter and first-degree assault); Foxglove  v.  State,
929  P.2d  669 (Alaska App. 1997) (upholding a composite sentence
of 19 years to serve for manslaughter and first-degree assault)).

     22   Id. at 533-34.

     23   Id. at 539.

     24   Id.

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