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Forster v. State (7/30/2010) ap-2273

Forster v. State (7/30/2010) ap-2273

     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
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) Court of Appeals No. A-9470/9490
Appellant/Cross-Appellee, ) Trial Court No. 3KN-03-2634 CR
v. )
) O P I N I O N
Appellee/Cross-Appellant. )
) No. 2273 July 30, 2010
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Kenai, Donald D. Hopwood, Judge.

          Appearances:  Josie Garton and  Margi  Mock,
          Assistant  Public  Defenders,  and   Quinlan
          Steiner, Public Defender, Anchorage, for the
          Appellant.  W. H. Hawley, Assistant Attorney
          General, Office of Special Prosecutions  and
          Appeals,  Anchorage, and Daniel S. Sullivan,
          Attorney General, Juneau, for the Appellee.

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

          BOLGER, Judge.

          David  S.  Forster  shot and killed a  police  officer.
Forster  moved to suppress the statements he made during  several
interrogations following his arrest, arguing that he was mentally
incapable   of   waiving  his  Miranda  rights1  and   that   the
interrogations that followed his first court appearance  violated
his right to counsel.
           The superior court suppressed Forsters statements from
the  first  interrogation after concluding that  Forsters  mental
condition prevented him from knowingly and intelligently  waiving
his  Miranda  rights.  The court also suppressed  the  statements
Forster  made  in  his final interrogation, ruling  that  he  was
questioned  in  violation of his right to counsel.   Forster  now
argues  that  the superior court also should have suppressed  his
statements  in the second, third, and fourth interrogations.   We
affirm the superior courts decisions that Forster was capable  of
a  knowing  and  intelligent waiver during his second  and  third
interrogations,   and  that  Forsters  first   court   appearance
sufficiently  dissipated the taint associated  with  the  Miranda
violation in his first interrogation.  We also uphold the  courts
decisions  that  Forster waived his right to counsel  before  the
second, third, and fourth interrogations.
          On  cross-appeal,  the State argues that  the  superior
court  was  required to impose a mandatory 99-year sentence  even
though  there  was no jury finding that the victim was  a  police
officer  engaged  in  official duties.  We  affirm  the  superior
courts decision not to restrict Forsters good-time credit without
a  jury  determination on this issue, but we  conclude  that  the
court   was   required  to  restrict  Forsters  eligibility   for
discretionary parole.

     Facts and proceedings
          On  Christmas Day in 2003, shortly after  8:00  in  the
evening,  Kenai  Police  Officer  John  Watson  approached  David
Forster  in  the driveway of Forsters home to conduct  a  welfare
check based on a report that Forster had been behaving strangely,
was  possibly driving under the influence, and that his  fianc‚e,
Crystal  Hallman, who was with him, seemed upset and  frightened.
During  this  contact, Forster obtained Officer Watsons  gun  and
shot  him  in  the  back and head.  After the  shooting,  Forster
retreated  into  his  house until he was persuaded  to  surrender
about five hours later.
          Forster   was   ultimately  convicted  of  first-degree
murder2 for killing Officer Watson and of three counts of  third-
degree  assault3 for conduct involving Hallman  and  two  of  the
officers  involved in his apprehension.  He was  sentenced  to  a
composite  term of 101 years to serve, including a  99-year  term
for the murder.
          After  his  arrest, Forster was advised of his  Miranda
rights  and questioned several times by the state troopers.   The
first   interrogation  was  conducted  by  Alaska  State  Trooper
Investigator  Jane  Schied on December 26 at 12:11  p.m.  at  the
Kenai  courthouse shortly before Forsters first court appearance.
Investigator Schied interrogated Forster a second time after  his
first  court appearance, at 2:20 p.m. at the same location.   The
third  interrogation  was  conducted by  Investigator  Schied  on
December 27 at 9:35 a.m. at Wildwood Pretrial Facility.
          Forster  initiated the fourth interrogation by  telling
          a corrections sergeant at Wildwood that he wanted to speak with
an  investigator.   This interrogation was  conducted  by  Alaska
State  Trooper Investigator Dane Gilmore on December 28 at  11:08
a.m.   Forster  also initiated the fifth and final  interrogation
with Investigator Schied on December 30 at noon at Wildwood.
          Before  trial, Forster moved to suppress the statements
he made during these interrogations, arguing that he was mentally
ill  and suffering from delusions when he was questioned and that
he  did not knowingly and intelligently waive his Miranda rights.
He  argued  that  the  Miranda violations in  each  interrogation
tainted his consent to later interrogations.  He also argued that
all the interrogations that took place after his first appearance
before  District Court Judge David S. Landry violated  his  Sixth
Amendment right to counsel.
          A  hearing  on  Forsters suppression  motion  was  held
before  Superior Court Judge Donald D. Hopwood.  At that hearing,
Forster  offered evidence of his mental condition  prior  to  the
shooting  and  in the ensuing days when he was interrogated.   He
also  presented  the expert testimony of Dr.  Susan  LaGrande,  a
licensed  clinical  psychologist.  Dr.  LaGrande  concluded  that
Forster  had  suffered a psychotic break and was not  capable  of
providing  a knowing and intelligent waiver until sometime  after
his last interrogation on December 30.  She found that throughout
the   interrogations   Forster  was   sleep   deprived,   clearly
delusional,   and   responding  to  both  auditory   and   visual
hallucinations.   She also opined that at the time  that  he  was
interrogated Forster did not fully comprehend that he  was  being
charged  with  a  crime, that he had the right  to  speak  to  an
attorney, or what manner of legal assistance could be rendered.
          The  State  relied  primarily on the testimony  of  the
troopers who had contact with Forster and on the content  of  the
interrogations.   The primary interrogator, Investigator  Schied,
conducted  the  first interrogation on December 26,  and  Forster
spoke  for most of that interrogation, about forty minutes, about
the  devil and how the devil had been after him on the  night  of
the  shooting.  But Schied testified that during this  and  later
interrogations, when she asked Forster direct questions about the
shooting,  he  was  rational and able to  answer  her  questions.
Schied  testified that Forster appeared to understand his Miranda
rights and he said that he understood them.
          Investigator  Gilmore testified  that  he  had  contact
with  Forster before Investigator Schied interrogated Forster  on
the  morning of December 26, when Gilmore advised Forster of  his
Miranda   rights,   and  Forster  declined  to  be   interviewed.
Investigator  Gilmore  did  not meet  with  Forster  again  until
December 28.  On that date, Gilmore again advised Forster of  his
Miranda   rights,   and   Forster  agreed   to   talk.    Gilmore
characterized  Forster as calm, cooperative,  and  responsive  at
that time.
          After  hearing  the evidence, Judge Hopwood  suppressed
Forsters   statements   during  the  first   interrogation   with
Investigator  Schied  on  December  26,  finding  that   Forsters
disturbed  mental  condition prevented  him  from  knowingly  and
intelligently waiving his rights.  But Judge Hopwood  found  that
Forsters mental condition improved quickly after he had rest  and
his  stress  lessened.   Forster then  began  to  demonstrate  an
increasing  understanding and sophistication about  what  was  at
stake and what he wanted to talk about, and how he could ...  get
information   from   the  officers  without  giving   them   more
          In  subsequent  interrogations,  Forster  was  able  to
assemble  elaborate detail and lengthy descriptions  of  events[,
m]uch  of [which] was corroborated by other evidence, and he  was
able to detect inconsistencies and attempt to correct them.   For
instance,  on December 28, after Investigator Gilmore  confronted
Forster   with   conflicts  in  his  and  his  fianc‚e   Hallmans
statements, Forster called his friend Jesse Tubbs and told him to
tell Hallman to be careful what she told the police.
          Judge Hopwood found that Forsters mental condition  had
improved enough for him to knowingly and intelligently waive  his
rights  during  the  second,  third, and  fourth  interrogations.
Applying  the  test  in  Brown  v. Illinois,4  he  also  rejected
Forsters  claim  that  his  consent to these  interrogations  was
tainted by the earlier Miranda violation.
          Judge  Hopwood  suppressed Forsters statements  in  the
fifth,   and  last,  interrogation,  finding  that  Forster   was
questioned  in violation of his Sixth Amendment right to  counsel
because  by  that  time  he  had filed a  request  for  appointed
counsel.   Judge  Hopwood  also ruled  that  Investigator  Schied
violated Forsters rights to silence and counsel by continuing  to
question him after he invoked those rights.
          Did  Forster  knowingly  and  intelligently  waive  his
          Miranda rights?
          Forster   argues   that  he  did  not   knowingly   and
intelligently  waive  his Miranda rights during  the  second  and
third  interrogations, mainly challenging  the  validity  of  his
waiver  before  the second interrogation.  As already  explained,
Judge Hopwood found that Forsters mental condition prevented  him
from  knowingly and intelligently waiving his rights  during  the
first interrogation, but he found that Forster validly waived his
rights  in  the  second  interrogation, which  began  just  fifty
minutes after the first interrogation ended.
          The  State  has  the burden to prove by a preponderance
of  the  evidence  that  Forster intentionally  relinquished  his
Miranda rights.5  We look at the totality of the circumstances in
determining  if the State met that burden.6  We must  uphold  the
trial  courts factual findings unless they are clearly erroneous,
but  we  independently  determine  whether  Forsters  waiver  was
knowing  and  intelligent, viewing the facts in  the  light  most
favorable to the judges ruling.7
          The  transcript of the second interrogation shows  that
Forster  expressed a clear and unequivocal waiver of his  Miranda
rights.   But Forster argues that he was suffering from delusions
that made him incapable of a knowing and intelligent waiver.   He
asserts  that  he  continued to be in a  highly  disturbed  state
during  the  second interrogation and that his purported  Miranda
waiver was inextricably linked to his delusion.
          We  must first determine what level of understanding  a
          mentally ill suspect must have of his Miranda rights to knowingly
and  intelligently waive those rights.  Forster urges this  court
to  apply  the analysis in Adams v. State.8  In Adams,  we  ruled
that  a  mentally ill defendant was not competent  to  waive  his
right  to  counsel  and represent himself at  trial  because  his
paranoid  delusions affected his perception of the  evidence  and
fettered  any  ability  to  appreciate  the  extent  of  his  own
disability  such that he was unable either to be fully  aware  of
the  risk  of  self-representation or to rationally conceive  and
coherently present a defense.9  Forster relies on Adams to  argue
that a waiver of Miranda rights is not knowing and intelligent if
the waiver is inextricably linked to [the defendants] delusion or
          Adams  addressed whether a mentally ill  defendant  was
capable of representing himself at trial.  We do not believe that
this  analysis  is  appropriate to evaluate whether  a  defendant
knowingly  and intelligently waived his Miranda rights.   As  the
United  States  Supreme Court recently explained  in  Indiana  v.
Edwards,10 a defendant might be fully competent to waive  rights,
including the right to counsel, but still be unable to carry  out
the  basic  tasks needed to present his own defense  without  the
help of counsel.11
          There  are  no  Alaska  cases directly  addressing  the
claim  that  a  waiver  of Miranda rights  was  not  knowing  and
intelligent   because  of  mental  illness.12     Absent   Alaska
authority  directly  on  point, Judge Hopwood  applied  the  rule
articulated  by  the  Supreme Court in Colorado  v.  Spring13  to
assess   whether   Forsters  Miranda  waiver  was   knowing   and
intelligent.   In  Spring,  the defendant  expressly  waived  his
Miranda  rights  but  later  moved to  suppress  his  confession,
arguing  that his waiver was not knowing and intelligent  because
the  police  never  told  him he would be  questioned  about  his
involvement  in  a murder.14  The Supreme Court rejected  Springs
claim,  ruling  that a knowing and intelligent  waiver  does  not
require  that  a  suspect  know  and  understand  every  possible
consequence of a waiver of the Fifth Amendment privilege.15   The
Supreme Court observed that Spring did not allege that he did not
understand  his  Miranda rights or the consequences  of  speaking
with law enforcement.16
            Similarly,  in Moran v. Burbine17 the  Supreme  Court
held   that  the  defendants  Miranda  waiver  was  knowing   and
intelligent even though the police failed to inform  him  of  his
attorneys efforts to reach him prior to the interrogation.18  The
Court  explained that the constitution did not require the police
to  supply  a  suspect  with a flow of information  to  help  him
calibrate his self-interest in deciding whether to speak or stand
by his rights; a waiver is valid as long as the suspects decision
not  to  rely on his rights was uncoerced, that he at  all  times
knew  he could stand mute and request a lawyer, and that  he  was
aware  of the States intention to use his statements to secure  a
          Lower  courts addressing a Miranda waiver by a mentally
ill  suspect  treat  mental illness as just  one  factor  in  the
totality  of  the circumstances.20  Some courts have  found  that
mental illness did not vitiate a facially valid waiver.21   Other
          courts have found that the defendant was too mentally ill to
knowingly and intelligently waive Miranda rights.22  The  general
rule  we  discern  from  these cases is  the  one  Judge  Hopwood
applied:  A  Miranda  waiver is knowing and  intelligent  if  the
record   shows   that  the  defendant  had  at  least   a   basic
understanding  of the Miranda rights and what a waiver  of  those
rights  entailed.23  As Judge Hopwood emphasized,  the  defendant
need not be totally rational.
          Judge  Hopwood  found  that  in  the  days  before  the
December 25 shooting, and for a period of time after he was taken
into  custody  early on the morning of December 26,  Forster  was
under  stress,  he was having difficulty thinking rationally,  he
was  not connected to reality, he was exhibiting bizarre behavior
and  thought  processes in patterns, he had audio  hallucinations
and was having difficulty functioning on a reality level and on a
normal  level.  Prior to the first interrogation on December  26,
Forster had been on suicide watch, he had complained he was cold,
and  he  objected  to being in jail with people he  thought  were
          During that one-hour interrogation, Forster spent  some
forty  minutes talking about the influence of the devil  ...  and
Satan,  and these types of thoughts.  He was incoherent at times,
and  he  made  a  lot of bizarre references ...  that  he  was  a
prophet,  that  there were prophets at his house, there  was  the
presence  of  Jesus there, [and that] his mother  was  a  virgin.
Judge  Hopwood  found  that  Forsters  response  to  the  Miranda
warnings  you give me my rights and Ill tell you what Im  feeling
did   not  indicate  an  awareness  of  his  rights  or  of   the
consequences  of  waiving  them.   He  therefore  suppressed  all
Forsters statement in the first interrogation.
          The  second  interrogation took  place  at  2:20  p.m.,
fifty  minutes  after  the first interrogation  ended  and  about
twenty  minutes after Forsters first appearance in court.   Judge
Hopwood  concluded  that Forster made a knowing  and  intelligent
waiver  of  his  Miranda rights during this second interrogation,
finding  most noteworthy the intervening court proceeding  before
Judge  Landry.   Judge Hopwood found the court proceeding  was  a
focused, sobering event for Forster.  At that proceeding, Forster
received a copy of the charges against him and was advised of the
penalties  he  faced if he was convicted.  He  received  detailed
video  advisements of his rights and a personal explanation  from
the  judge   a  much  more  detailed  explanation  than  normally
required  for  a  Miranda  waiver.  Judge  Landry  also  provided
Forster  with  the necessary paperwork to request court-appointed
          During  the  interrogation  that  followed  that  court
appearance,  Investigator Schied again  advised  Forster  of  his
Miranda  rights.   Forster asked Schied to  repeat  some  of  the
advisements, which Judge Hopwood found indicated that Forster was
actively  thinking about his rights during the interview.   After
the  advisements,  when Schied asked Forster  if  he  would  mind
talking to her, Forster responded:  Id love to, Id love to.   And
when  Schied asked Forster about his next court date, he said,  I
need to talk to you.
          Judge  Hopwood found that Forster then tried to explain
          the shooting in exculpatory terms, labeling it an accident.
Judge   Hopwood   concluded   that   Forster   demonstrated    an
understanding  of  the  situation and  of  his  rights  that  was
[m]arkedly different from the first interrogation.  He also found
more  generally that Forster was highly intelligent and had  some
experience  with  the  criminal justice  system.   Judge  Hopwood
concluded   that   Forsters  Miranda  waiver  was   knowing   and
intelligent, and that Forsters statements were admissible.
          Forster  argues that there is no support in the  record
for  Judge Hopwoods conclusion that his initial appearance before
Judge Landry brought about such a change in his mental state that
he  was able to knowingly and intelligently waive his rights.  He
argues  that  the  record  is  replete  with  evidence  of  [his]
continuing delusional state.  In particular, he claims  that  his
statements  demonstrated that he was confused about  whether  his
pastor  could  be  his attorney.  He argues that  this  confusion
showed  that  his religious delusions undermined his  ability  to
knowingly and intelligently waive his Miranda rights.
          This  was  the view that Forsters expert, Dr. LaGrande,
advanced  in  superior court.  She opined that  Forster  did  not
understand that his pastor could not act as his attorney and that
this  misunderstanding showed that he was incapable of  assessing
the meaning of his Miranda waiver.
          But  Judge Hopwood found that Dr. LaGrande misconstrued
the   record  on  this  point.   The  judge  found  that  Forster
understood after the first court appearance that his pastor could
not  act  as  his  attorney and that the court  could  appoint  a
licensed attorney for him.  He also found that at the first court
appearance  Forster was not really asking to have his pastor  act
as his attorney  rather, he wanted his pastor to vouch for him.24
Judge  Hopwoods findings are a reasonable interpretation  of  the
record, and Forster has not shown that these findings are clearly
          Forster   also   argues   that   during   the    second
interrogation he made statements demonstrating that he  continued
to  suffer delusions.  He notes, for instance, that he  said  his
eyes  were  bleeding after Officer Watson allegedly  sprayed  him
with  pepper  spray  and  that this bleeding  was  the  sweat  of
demons.26   And Forster said he could not sleep in his jail  cell
because  of  the evil spirits there.  He also points to  evidence
that  late  on  the  evening of December  26,  after  the  second
interview,  he  was  observed prancing around  his  cell,  naked,
yelling,  groping  at his genitals, drinking  toilet  water,  and
urinating around his cell.
          Judge   Hopwood  recognized  that  Forster  was   still
delusional to some degree.  But a defendants mental illness  does
not  automatically preclude a knowing and intelligent  waiver  of
rights; it is one factor courts must consider in the totality  of
the  circumstances.  Judge Hopwoods finding that Forsters thought
processes became substantially more rational during and after his
court appearance is supported by the evidence.
            Forster  behaved rationally during  his  first  court
appearance.  He gave the court his date of birth and the  correct
spelling  of his name.  After Judge Landry explained the  charges
and  potential penalties, Forster asked the court to clarify  one
          of the mandatory minimum sentences.  He told Judge Landry he had
no  questions about the video advisements on his rights.  And  he
objected to the amount of bail, asking the court why it had  been
increased  from $150,000 to $500,000.  He also strongly  objected
when Judge Landry imposed a condition of release barring him from
any contact with his fianc‚e.           In the interrogation that
followed  the  hearing, Forster was able to focus on Investigator
Schieds questions about the events leading up to the shooting and
to  provide responsive answers.  In general, he tried to  explain
the  shooting  in exculpatory terms, repeatedly  labeling  it  an
          Judge  Hopwood concluded that by the time of the second
interrogation, Forster understood what was at issue and what  was
at  stake  and  he  elected to talk with the  police  without  an
attorney.  He rejected Dr. LaGrandes opinion that Forsters mental
condition  precluded a valid waiver, noting that  her  assessment
was  based in part on the legally irrelevant finding that Forster
did  not  act  in his best interests when he waived  his  Miranda
          Judge  Hopwood was not required to accept Dr. LaGrandes
expert testimony, even though it was unrefuted, as long as  there
was  a  sufficient evidentiary basis for his contrary findings.28
We  conclude  that Judge Hopwood did not err when he  ruled  that
Forster  made  a  valid  waiver  of  his  rights  in  the  second
          We  reach the same conclusion with respect to the third
interrogation.  Forster argues that his conduct in his  cell  the
night  before the third interrogation indicated that  his  mental
condition  was  still poor.  But Forsters conduct and  statements
during  the  interrogation itself support Judge  Hopwoods  ruling
that  he acted knowingly and intelligently.  Although Forster  at
times  complained that he was uncomfortable and tired, the record
shows   that  he  was  calm  and  alert  at  the  start  of   the
interrogation when he waived his Miranda rights.

          Did  the  first interrogation taint Forsters subsequent
          Forster  next  argues  that Judge Hopwood  should  have
suppressed  his  statements  in the  second,  third,  and  fourth
interrogations  because his consent to those  interrogations  was
tainted by the statements he made in the first interrogation,  at
a  time  when his mental state precluded a valid Miranda  waiver.
He  argues that Judge Hopwoods ruling that the later waivers were
valid  was  based  on  a  faulty analysis and  clearly  erroneous
          As  we explained in Crawford v. State,29 there are  two
competing  analyses of the potential curative effect  of  Miranda
warnings  administered to a suspect in custody after  the  police
have already obtained an incriminating statement in violation  of
Miranda.   The older, dissipation of taint analysis is  based  on
the  Supreme Courts decision in Brown v. Illinois.30   The  Court
more  recently  announced  a  modified  analysis  in  Oregon   v.
Elstad,31  which  imposes a presumption that a  second  statement
made  after  properly administered Miranda warnings is  voluntary
and  admissible.32   Alaska courts have not  decided  whether  to
          adopt Elstad as a matter of state law.33
          In  Crawford,  this  court  summarized  the  difference
between these two tests:
          Under   Brown,   even   though   a   suspect
          ultimately receives proper Miranda warnings,
          the  statements that the suspect makes after
          receiving  those Miranda warnings are  still
          presumptively  inadmissible; to  rebut  this
          presumption, the government must  show  that
          there was a break in the chain of events  to
          insulate  those  later statements  from  the
          taint   of  the  suspects  initial  unwarned
          admissions.  But under Elstad, ... a careful
          and   thorough  administration  of   Miranda
          warnings  serves to cure the condition  that
          rendered  the  [earlier] unwarned  statement
          inadmissible, even when there  has  been  no
          significant   break   in   the   stream   of
In  other  words, Elstad raises a presumption that  once  Miranda
warnings have been given, the suspects choice whether to exercise
his privilege to remain silent should ordinarily be viewed as  an
act of free will.35
            Judge Hopwood concluded that the more rigorous  Brown
test  was appropriate under the Alaska Constitution.  We  do  not
need  to determine whether we should adopt Elstad as a matter  of
state  law  because we agree with Judge Hopwoods conclusion  that
Forsters  second  and  subsequent interrogations  pass  the  more
rigorous  Brown  test.  The intervening court  appearance  was  a
significant  break  in  the chain of events  insulating  Forsters
later  statements  from  the statements  he  gave  in  the  first
          In  Halberg v. State,36 we listed several factors  that
courts   should  consider  in  assessing  whether  a   defendants
subsequent statements should be deemed the tainted fruit of prior
illegally obtained statements under the Brown test:
          [T]he  purpose and flagrancy of the  initial
          illegal act, the amount of time between  the
          illegal  act  and the defendants  subsequent
          statement,   the  defendants  physical   and
          mental   condition  at  the  time   of   the
          subsequent statement, whether the  defendant
          remained in custody or was at liberty during
          this interval, whether the defendant had the
          opportunity  to  contact  legal  counsel  or
          friends  during this interval,  whether  the
          subsequent   interview  took  place   at   a
          different  location, whether the  defendants
          interrogators  were the  same  officers  who
          committed the prior illegal act, whether the
          evidence obtained from the prior illegal act
          affected  the defendants decision to  submit
          to   a  subsequent  interview,  whether  the
          police  used  lies or trickery to  influence
          the  defendants decision, and whether  there
          were  other intervening events that affected
          the defendants decision.[37]
          Forster  challenges Judge Hopwoods findings on  several
of  these factors.  First, he argues that Judge Hopwood erred  in
finding that the Miranda violation in the first interrogation was
not  flagrant.   Forster argues that the violation  was  flagrant
because  Investigator  Schied  persisted  in  interrogating   Mr.
Forster  when he was obviously delusional and unable to focus,  a
fact easily discernible from the transcripts and observed without
the benefit of a professional psychological assessment.
          But Judge Hopwood did not rely solely on the record  of
the   first  interrogation  when  he  decided  that  Forster  was
incapable of knowingly and intelligently waiving his rights.  The
judge also relied on the evidence of Forsters unusual behavior in
the  days leading up to the shooting, his conduct when he arrived
at  jail on December 26, his statements to his friend Tubbs  when
Forster   called   him  from  jail,  and  the  observations   and
conclusions  of  Dr.  LaGrande.   As  Judge  Hopwood  emphasized,
Investigator  Schied  did  not  have  the  benefit  of  all  this
information to assess whether Forster was malingering or  instead
suffering from such a severe mental illness that he was incapable
of waiving his rights.
          Forster  also  complains that Judge Hopwood  failed  to
consider  whether his illegally obtained admissions affected  his
decision  to  submit  to  later questioning.   But  Forster  only
mentions his admission that he shot Officer Watson, and that fact
was  never in dispute.  Forster does not explain how this or  any
other  admission affected his later decisions to waive his rights
he  just  makes  the  conclusory assertion that  his  admissions,
together  with  his  disturbed  mental  state,  put  him   at   a
psychological disadvantage.
          During   the   first   interrogation,   Forster    told
Investigator Schied that Officer Watson got out of his patrol car
with  his gun drawn, backed him to the wall, told him to drop  to
his  knees, and sprayed him in the eyes with pepper spray  so  he
could  not  see.  Forster said he took the gun from Watsons  hand
and, after a struggle over the gun, shot him in the heart and the
head.   Throughout the interview he maintained  that  he  had  no
choice but to kill Watson:  I knew if I didnt shoot him he  would
pull  his other gun and kill me, that [h]e came after me  and  my
bride, and that he was going to kill me.
          We  have  previously observed that [a]  defendant  will
not feel psychological pressure to waive his or her rights if the
defendant   does  not  view  his  or  her  prior  statements   as
incriminating.38   Several  days  later,  concerned   about   new
admissions  he had made to Investigator Schied during  the  third
interrogation, Forster told Investigator Gilmore that [t]he first
story  that  I told [Schied] was what happened.  Thus it  appears
unlikely that Forster considered that his statements in the first
interrogation were incriminating.
          Forster  next argues that Judge Hopwood gave inadequate
consideration to the fact that he remained in custody between the
first  and  second  interrogations and did  not  consult  with  a
friend, his pastor, or a lawyer.  Forster did, however, appear in
court,  and,  as  Judge  Hopwood found, this  was  a  significant
          intervening event.  Forster watched detailed video advisements on
his  rights, he was informed of the charges against him,  he  was
told  that his pastor could not act as his attorney, and  he  was
advised  about  his  right to apply for court-appointed  counsel.
Judge  Hopwood  found that this hearing was a  focused,  sobering
event  for  Forster, and this finding is supported  by  the  more
rational  responses  Forster  provided  to  Investigator  Schieds
questions during the second interrogation.
          As  Judge  Hopwood  acknowledged,  some  of  the  Brown
factors  suggested that Forsters decision to waive his rights  in
the  second  interrogation was tainted  by  the  earlier  Miranda
violation:   the  same officer conducted both interrogations,  in
the  same  place,  and  close in time.   But  these  factors  are
relatively less significant, because Investigator Schied did  not
engage  in any coercive or intimidating tactics during the  first
interrogation.39   The  totality of the  circumstances  therefore
supports the superior courts conclusion that Forsters decision to
waive  his rights during the second interrogation was not tainted
by the earlier Miranda violation.
          Forsters  claim also fails with respect  to  the  third
and  fourth  interrogations.  Forster concedes  that  his  mental
condition  had  improved  by this time.   And   Forster  has  not
explained  how  his  illegally obtained statements  affected  his
decision to consent to these later interrogations.
          Forster  additionally argues that  Investigator  Schied
did  not scrupulously honor his right to silence during the third
interrogation because she continued to question him after he said
I  want  some rest please.  As the State points out, Forster  did
not  raise  this  claim below, and we normally  do  not  consider
pretrial  suppression issues raised for the first time on  appeal
unless  the  violation is [s]ingularly egregious.40  We  find  no
egregious  violation  here.  Forster  cites  no  legal  authority
establishing   that   a   reasonable  police   officer   in   the
circumstances  would  understand  his  request  for  rest  as  an
invocation  of the right to silence41 and there is  authority  to
the contrary.42

          Did the troopers violate Forsters right to counsel?
          Forster  argues  that the superior  court  should  have
suppressed all his statements in the interrogations following his
first appearance before Judge Landry because his right to counsel
under  the Sixth Amendment and article I, section 2 of the Alaska
Constitution  attached  at  that hearing.   He  argues  that  his
Miranda waivers were insufficient to waive his right to counsel.
          Forster  listened  to a detailed video  explanation  of
his right to counsel at his first appearance on December 26.  The
judge  asked whether Forster was going to have the assistance  of
an  attorney,  and Forster indicated that he was  not,  that  his
pastor would act as his witness.  After the judge clarified  that
the pastor could not act as an attorney, Forster asked whether he
was  required to decide immediately.  In response, the judge gave
Forster  an  application form he could use to  request  appointed
counsel.  Forsters second interrogation took place shortly  after
this court proceeding ended.
            Judge Hopwood rejected Forsters Sixth Amendment claim
          with respect to this second interrogation on December 26 and the
interrogations  on  December 27 and 28.   He  suppressed  all  of
Forsters  statements in the last interrogation  on  December  30,
because  Forster  by  then had filed the  request  for  appointed
counsel.  Judge Hopwood did not address Forsters right to counsel
under the Alaska Constitution because Forster did not raise  that
claim in superior court.
          A  defendants  initial appearance before  a  judge,  at
which  the defendant is informed of the charges against  him  and
bail  is  set, marks the start of adversary judicial  proceedings
that   trigger  attachment  of  the  Sixth  Amendment  right   to
counsel.43   Once that right attaches, the defendant is  entitled
to   the   presence   of  counsel  at  any  critical   stage   of
postattachment proceedings,44 including a police interrogation.45
However,  in Patterson v. Illinois46 the Supreme Court held  that
the   Miranda  warnings  are  sufficient  to  protect  the  Sixth
Amendment  right  to  counsel in the context  of  post-indictment
          Forster  argues that Patterson does not  apply  in  his
case because Patterson  initiated the police interview,48 whereas
Investigator Schied took Forster to a room in the courthouse  and
interrogated him.  But the Supreme Court has clarified  that  the
Patterson  analysis  also applies when the  police  initiate  the
interview.49   Thus, Forsters Miranda waivers were sufficient  to
waive his Sixth Amendment right to counsel.
          Forster urges us to hold that a Miranda waiver  is  not
adequate  to  waive  the  right  to  counsel  under  the   Alaska
Constitution.   In other contexts, the Alaska Supreme  Court  has
interpreted the right to counsel in article I, section 11 of  the
Alaska   Constitution  to afford greater protection  to  criminal
defendants than the Sixth Amendment.50  But Forster did not raise
his state constitutional claim in superior court, so he must show
plain  error.51   Judge  Hopwood did not commit  plain  error  by
failing  to  adopt  a  more  stringent  test  under  the   Alaska
Constitution, given the clear Supreme Court precedent  indicating
that  a  valid  Miranda waiver is sufficient to waive  the  Sixth
Amendment right to counsel.52
          Was  the  judge required to impose a mandatory  99-year
          Normally  a  person  convicted of  first-degree  murder
faces  a sentencing range of 20 to 99 years to serve.53   But  AS
12.55.125(a)(1) provides that a defendant convicted of the first-
degree  murder  of  a  uniformed or otherwise clearly  identified
peace  officer ... who was engaged in the performance of official
duties  at  the time of the murder is subject to a mandatory  99-
year term.  Under related statutes, a defendant sentenced to this
mandatory  term  is  ineligible  for  a  good-time  deduction  or
discretionary parole.54
          Forster  was  convicted  of first-degree  murder,   and
there  was  no  dispute that Officer Watson was  in  uniform  and
engaged  in official duties at the time he was killed.   But  the
jury was never asked to make a finding that Officer Watson was  a
police officer engaged in official duties.
          Under   Apprendi  v.  New  Jersey55  and   Blakely   v.
          Washington,56 a defendants Sixth Amendment right to jury trial
requires  that  any  fact  other than  a  prior  conviction  that
increases the penalty for a crime beyond the prescribed statutory
maximum  must  be  submitted  to  a  jury  and  proved  beyond  a
reasonable  doubt.57   Judge  Hopwood  ruled  that  imposing  the
mandatory 99-year term would violate this rule because  the  jury
did  not  find that Officer Watson was engaged in the performance
of  official  duties  at the time he was  killed.   He  therefore
applied the normal sentencing range of 20 to 99 years and imposed
the  maximum sentence within that range  99 years to serve,  with
no  suspended time.  That sentence left Forster eligible for both
good-time credit and discretionary parole.
          The   State  challenges  this  decision,  arguing  that
eliminating a defendants eligibility for  discretionary parole or
good  time does not affect the defendants statutory maximum  term
for purposes of the rule in Apprendi and Blakely.
          The   States  argument  is  correct  with  respect   to
discretionary  parole.   In  State  v.  Malloy,58  the  defendant
challenged    another   subdivision   of   this    statute,    AS
12.55.125(a)(3),  which requires a judge sentencing  a  defendant
for  first-degree murder to impose a mandatory 99-year term  with
no  eligibility  for  parole if the  judge  finds  by  clear  and
convincing  evidence  that the defendant engaged  in  substantial
physical  torture of the victim.  The Alaska Supreme  Court  held
that  this provision did not violate the right to jury  trial  in
Apprendi  and Blakely because, under AS 12.55.115, the sentencing
court   had the statutory authority to impose a 99-year  sentence
with  no  eligibility  for discretionary parole  even  without  a
finding  of  substantial  physical  torture.59   Therefore,   the
finding  of  substantial torture did not increase  the  statutory
maximum sentence.
          Similarly,  in  the  present  case,  a  restriction  on
discretionary  parole  would not increase the  statutory  maximum
sentence.   There  is  no  dispute that  Forsters  victim  was  a
uniformed  police  officer engaged in his  official  duties.   We
therefore  conclude  that Judge Hopwood  should  have  restricted
Forsters eligibility for discretionary parole.
          But  the  Malloy  holding did not resolve  whether  the
right  to  jury trial is violated by a sentence that  denies  the
defendant  the right to earn good-time credit based on a  factual
finding that was not submitted to the jury.60  Under Alaskas good-
time  credit statutes, prisoners serve only two-thirds  of  their
sentences  and then are released on mandatory parole unless  they
forfeit   good   time  by  misbehaving  in  prison.61    But   AS
33.20.010(a)(1) declares that a first-degree murder defendant who
receives  a  mandatory 99-year term receives no good-time  credit
and  therefore  is  never  eligible for  mandatory  parole.   The
question  left  unresolved in Malloy  and squarely  presented  in
this case  is whether a defendant is entitled to have a jury find
the  facts  that  result  in this elimination  of  the  good-time
          The  State argues that the weight of authority in other
jurisdictions suggests that sentencing statutes restricting good-
time  credit  do  not implicate Blakely or Apprendi  because  the
statutes  do  not  alter the maximum sentence imposed,  only  the
          sentence served  and then only potentially, because the defendant
might forfeit good-time credit by poor conduct in prison.62
          Forster  points out that Alaska sentencing courts  have
no  authority to restrict eligibility for good-time credit.   All
first-degree  murder defendants automatically receive  the  good-
time  deduction unless the State proves one of the factors listed
in  the  statute   in this case, that the victim was  an  officer
engaged  in official duties.63  Therefore, he argues, a mandatory
99-year  sentence  with no possibility of  good-time  credit  and
mandatory  parole is not within the maximum sentence a judge  may
impose  solely on the basis of the facts reflected  in  the  jury
verdict or admitted by the defendant.
          The Malloy decision states the test we are required  to
apply  to  determine whether the good-time restriction  increases
the  maximum  sentence for purposes of Apprendi.   This  test  is
based  on  the  original formulation by the United State  Supreme
Court  in  Apprendi:  [T]he relevant inquiry is one not of  form,
but of effect  does the required finding expose the defendant  to
a  greater  punishment than that authorized by the  jurys  guilty
verdict?64   We  are  required to compare the  harshest  sentence
actually  available before a finding of aggravating circumstances
under  AS  12.55.125(a) with the actual harshness of the sentence
that is mandated by such a finding.65
          This  test  involves three steps:  first,  we  identify
the   harshest  sentence  available  before  a  finding  of   the
aggravating  circumstance.  Second, we identify the harshness  of
the  sentence  that is mandated when the aggravating circumstance
is  found.   And third, we compare the two sentences to determine
whether the aggravating circumstance requires a sentence that  is
actually harsher than the harshest sentence otherwise available.
          In  this  case, the harshest sentence available without
a   finding   of  the  aggravating  circumstance  is   99   years
imprisonment,  without  the possibility of discretionary  parole,
but  with  a  reduction for good-time credit.  As we have  noted,
even  without  this aggravating circumstance, a sentencing  judge
has  the statutory authority to  restrict or completely eliminate
a defendants eligibility for discretionary parole.66
          But  the  Alaska  sentencing statutes  give  courts  no
discretion to limit a prisoners good-time deduction.
          A  prisoner  sentenced  to  more  than  three  days  is
entitled   to   a  deduction  of  one-third  of   the   term   of
imprisonment.67   The  amount  of  the  good-time  deduction   is
computed according to a prisoners total sentence and credited  at
the outset of the sentence.68  At the expiration of the prisoners
sentence,  less the time deducted for good conduct, the  prisoner
shall  be released.69  A prisoner does not forfeit his good  time
unless  the  authorities  establish  that  he  has  committed   a
subsequent  offense or violated prison rules.70  Thus a  sentence
of   imprisonment  necessarily  includes  good-time  credit   and
mandatory  parole,  unless  a  fact  finder  makes  one  of   the
additional   factual  findings  specified   in   the   sentencing
          The  second  step  in the Malloy test  requires  us  to
identify the actual harshness of the sentence that is mandated by
a  finding of the aggravating circumstance.  In this case,  under
          AS 33.20.010(a)(1), a mandatory 99-year sentence calls for
complete elimination of good-time credit and mandatory parole.
          The   third  step  requires  us  to  compare  the   two
sentences  to  determine  whether  the  aggravating  circumstance
requires  a  sentence that is actually harsher than the  harshest
sentence otherwise available.  Here, we must determine whether  a
sentence that excludes good-time credit is actually harsher  than
a sentence that includes good-time credit.
          On  a  similar  issue, the Malloy court stated  that  a
parole-restricted term of ninety-nine years is undeniably harsher
than  a ninety-nine-year term that does not restrict a defendants
eligibility  for  discretionary parole.72  The  court  ultimately
held  that  this  distinction did not trigger the requirement  of
jury   trial   because   a   sentencing  judge   could   restrict
discretionary   parole  without  relying   on   the   aggravating
circumstance.  But the courts comparison of the parole-restricted
sentence  to a sentence without such a restriction bears directly
on the issue presented in this case.
          If  a  parole-restricted 99-year sentence is undeniably
harsher  than  a  sentence without such  a  restriction,  then  a
sentence   without  the  possibility  of  good-time  credit   and
mandatory  parole  is  undeniably harsher  than  a  99-year  term
without  such a restriction.  So the mandatory sentence  required
by  the  aggravating circumstance is actually  harsher  than  the
harshest  sentence actually available without this finding:  that
is,  the  aggravating circumstance exposes  the  defendant  to  a
greater  punishment than the maximum sentence authorized  by  the
jurys verdict standing alone.
          In Keels v. United States73 the defendant challenged  a
similar  statute that required the court to impose a sentence  of
life  imprisonment without the possibility of parole  for  first-
degree   murder  based  on  the  courts  finding   of   specified
aggravating  circumstances  for instance,  that  the  murder  was
especially  heinous,  atrocious, or  cruel.74   The  Keels  court
concluded  that this statute lengthened the maximum sentence  the
defendant  faced,  and rejected the governments  claim  that  the
limitation  on  parole was an increase in the  mandatory  minimum
sentence  that  did not implicate the right to jury  trial  under
          Ultimately   the   governments   distinction
          between  a  mandatory minimum and a  maximum
          sentence  in the present context is  one  of
          words.   ...   [Life  without   parole]   is
          undeniably more burdensome to the  defendant
          than  life  with the possibility of  parole.
          ...    Excluding   the   jury    from    the
          determination  of  an offenders  eligibility
          for   heightened  punishment  of  this  kind
          distorts   McMillan,[75]  a  true  mandatory
          minimum case, and cannot be reconciled  with
We  agree  with  this  reasoning and  consequently  hold  that  a
sentencing  court  may  not restrict or  eliminate  a  defendants
eligibility  for  good-time credit and mandatory  parole  without
holding  a  jury  trial  on the aggravating  circumstance  in  AS
          In  summary, Judge Hopwood correctly recognized that he
could not  restrict Forsters eligibility for good-time credit  or
mandatory  parole  based solely on the guilty  verdict.   Without
additional  findings, the most severe sentence  the  judge  could
impose was 99 years subject to the normal good-time deduction  of
one-third  of  that sentence.  Apprendi and Blakely require  that
any finding eliminating this good-time deduction be submitted  to
a jury and proven beyond a reasonable doubt.
          But   Judge   Hopwood  was  required  to   impose   the
restriction  on discretionary parole mandated by AS 12.55.125(a).
This   restriction  does  not  increase  the  statutory   maximum
sentence,  so  a jury finding is not required.77  In  this  case,
there  is  no  dispute that the victim of Forsters  crime  was  a
uniformed peace officer who was engaged in the performance of his
official duties at the time of this crime.
          Under  the  double jeopardy clauses of  the  state  and
federal  constitutions,  once a sentence  has  been  meaningfully
imposed,  it  may not, at a later time, be increased.78   But  an
illegal  sentence may be corrected even if this means  increasing
the   sentence   because  an  illegal  sentence  has   not   been
meaningfully   imposed  for  double  jeopardy  purposes.79    The
superior  courts decision not to restrict Forsters  discretionary
parole  constituted an illegal sentence because, as  just  noted,
the  parole restriction was required by the uncontested facts  of
this case.
          Forster  argues  that  the State cannot  challenge  the
legality  of  his  sentence  in a cross-appeal,  but  only  in  a
petition for review.  He also argues that the States cross-appeal
should not be treated as a petition for review.
            There  is authority holding that the State  may  only
seek modification of an illegal sentence by filing a petition for
review.80   But  those cases were decided before the  legislature
amended this courts jurisdictional statute, AS 22.07.020, in 1993
to  broaden the States right to appeal in criminal cases.  Before
that amendment, the States right to appeal in criminal cases  was
limited   to  testing  the  sufficiency  of  the  indictment   or
information.81  Under the current statute, the governments  right
to  appeal  is  limited only by the prohibitions  against  double
jeopardy  contained  in the United States  Constitution  and  the
Alaska  Constitution.82  As we have already discussed, correcting
an illegal sentence does not violate the defendants right against
double jeopardy.
          When  the  legislature amended AS  22.07.020(d)(2),  it
declared  its  intent  to bring the States  right  to  appeal  in
criminal  cases in line with federal law under 18 U.S.C.  3731.83
And yet the federal courts of appeal are split on whether section
3731  authorizes the government to appeal an illegal  sentence,84
and  the  legislative history of AS 22.07.020(d)(2) is silent  on
this issue.85  It is therefore not clear whether the State has  a
right  to pursue a modification of Forsters sentence in a  cross-
          As  Forster points out, if the State appeals a criminal
sentence as too lenient and the defendant does not challenge  the
sentence,  under AS 12.55.120(b) the authority of this  court  is
          limited to issuing an advisory opinion approving or disapproving
the  sentence.86  But the plain language of this statute suggests
that  it limits only our authority to modify a sentence the State
challenges  as  too lenient  i.e., as an abuse  of  discretion.87
Alaska  cases  have  long  recognized  our  authority  to  direct
sentencing  courts to correct an illegal sentence,88 and  nothing
in  the legislatures 1993 amendment to our jurisdictional statute
suggests it intended to change this well-established rule.89
          We   need  not  definitively  resolve  these  questions
because  we  conclude that the States appeal raises an  important
question  of  law that advances an important public interest  and
that  it  merits  recognition as a petition  for  review.90   The
superior  courts decision not to restrict Forsters  discretionary
parole   constituted  an  illegal  sentence  because  the  parole
restriction was required by the uncontested facts of  this  case.
We  therefore  grant  the  petition for review  and  reverse  the
superior courts decision on this issue.

          Is  discretionary parole required by Forsters right  to
          Forster   also   argues  that   a   99-year   term   of
imprisonment without discretionary parole would violate his right
to reformation.  Article 1, section 12 of the Alaska Constitution
provides in pertinent part:
          Criminal administration shall be based  upon
          the  following:  the need for protecting the
          public,   community  condemnation   of   the
          offender,  the rights of victims of  crimes,
          restitution  from  the  offender,  and   the
          principle of reformation.
This  provision  provides  an outer  limit  on  the  legislatures
authority to determine the appropriate punishment for a crime.91
          A   given  sentencing  provision  is  not  required  to
satisfy  each  of  the  goals listed in  this  provision.92   The
legislature  may reasonably emphasize certain goals  over  others
when   determining  the  individual  components  of  a   criminal
sentence.93   In  other  words,  each  component  of  a  criminal
sentence  must  advance the protection of the  public,  community
condemnation  of  the  offender, the  rights  of  crime  victims,
restitution, or the reformation of the defendant.
          We  therefore  consider which of these goals  might  be
served by the legislative restriction on discretionary parole for
a  defendant  who  intentionally killed  a  police  officer.  The
legislature  could  reasonably conclude  that  a  restriction  on
parole  might  be  necessary to protect the public  from  someone
brazen  and dangerous enough to murder a uniformed police officer
engaged  in  official  duties.  The  legislature  could  likewise
conclude   that   this   crime   merited   additional   community
condemnation because of the officers special role in  maintaining
public  order, and because of the risks police officers  take  by
putting  themselves  in  harms way.  The legislature  could  also
conclude  that a lengthy sentence  is necessary for a person  who
murders  a  police  officer in order to deter the  offender  from
future  crimes  and  to  serve  as  a  warning  to  others.   The
restriction  on discretionary parole for these serious  offenders
          thus bears a substantial relationship to several of the
sentencing goals.
          Forster  argues  that we recognized the  importance  of
the  three-judge  panel as a safety valve when we  sustained  the
presumptive  sentencing  system against a similar  constitutional
attack.94  The three-judge panel has the authority to depart from
the  strict  provisions of the presumptive sentencing  scheme  to
prevent  manifest  injustice.95  The  three-judge  panel  has  no
authority  in a first-degree murder case, like this one,  because
presumptive sentencing does not apply.
          But  a defendant sentenced to a mandatory 99-year  term
does  have  a  different  type  of  safety  valve.   A  defendant
sentenced  to a mandatory 99-year term under AS 12.55.125(a)  may
apply  for a modification or reduction of sentence after  serving
one-half the mandatory term without consideration of good time.96
This provision serves the goal of reformation for those offenders
who deserve parole consideration before their mandatory release.
          In  this  case, Judge Hopwood recognized  that  Forster
had  a  low  potential for rehabilitation.  If his  circumstances
change  during his incarceration, then he may be eligible  for  a
sentence  modification and discretionary parole.  But  regardless
of  Forsters  future  potential, we conclude that  the  statutory
restriction  on his discretionary parole is consistent  with  the
multiple sentencing goals encompassed in the Alaska Constitution.

          We  find  no  error  in the superior courts  denial  of
Forsters motion to suppress.  We therefore AFFIRM the judgment of
conviction.   But  we  REMAND for amendment of  the  judgment  to
reflect that Forster is not eligible for discretionary parole.
     1  See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,  16
L. Ed. 2d 694 (1966).
     2 AS 11.41.100(a)(1)(A).

     3 AS 11.41.220(a)(1)(A).

4 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).

     5  Giacomazzi  v.  State, 633 P.2d 218, 222  &  n.4  (Alaska
1981); McMahan v. State, 617 P.2d 494, 498 (Alaska 1980).

     6  Moran  v.  Burbine, 475 U.S. 412, 421, 106 S.  Ct.  1135,
1141, 89 L. Ed. 2d 410 (1986).

     7  See  Nashoalook v. State, 663 P.2d 975, 979 & n.2 (Alaska
App. 1983).

8 829 P.2d 1201 (Alaska App. 1992).

     9 Id. at 1206.

     10    554  U.S.  164, 128 S. Ct. 2379, 171  L.  Ed.  2d  345

     11   Id., 128 S. Ct. at 2386.

     12        But see Schade v. State, 512 P.2d 907, 916 (Alaska
1973)  (concluding that mental illness is one of several  factors
which  must  be  weighed in determining whether a  confession  is

     13         479  U.S. 564, 107 S. Ct. 851, 93 L. Ed.  2d  954

     14        Id. at 567-69, 573, 107 S. Ct. at 853-55, 857.

     15        Id. at 574-75, 107 S. Ct. at 857-58.

     16        Id.

     17         475  U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d  410

     18        Id. at 420-24, 106 S. Ct. at 1140-42.

     19         Id. at 422, 106 S. Ct. at 1141; see also Berghuis
v. Thompkins, 560 U.S. ___, 130 S. Ct. 2250, 2262 (2010), 2010 WL
2160784  at  *11  (Where the prosecution  shows  that  a  Miranda
warning  was given and that it was understood by the accused,  an
accuseds uncoerced statement establishes an implied waiver of the
right to remain silent.).

     20    Obviously, if the impairment is substantial enough, it
may  be the controlling factor.  Cf. Garrett v. State, 369  So.2d
833,  836 (Ala. 1979) (discussing confession by mentally disabled

     21    See,  e.g., People v. Woidtke, 587 N.E.2d  1101,  1111
(Ill.  App.  1992); Commonwealth v. Cifizzari, 474  N.E.2d  1174,
1177  (Mass. App. 1985); State v. Scott, 841 S.W.2d 787, 789 (Mo.
App.  1992);  State v. Miller, 714 S.W.2d 815, 818,  822-25  (Mo.
App.  1986); McGregor v. State, 885 P.2d 1366, 1378 (Okla.  Crim.
App.  1994); Morris v. State, 766 P.2d 1388, 1391-92 (Okla. Crim.
App. 1988).

22    See,  e.g.,  Commonwealth v. Hilton, 823 N.E.2d  383,  392-
93  (Mass.  2005); Commonwealth v. Cephas, 522 A.2d 63,  65  (Pa.
Super. 1987).

     23    Woidtke,  587  N.E.2d at 1111; see  also  Hilton,  823
N.E.2d  at 393 (invalid waiver where defendant did not understand
her  legal rights); Scott, 841 S.W.2d at 789 (valid waiver  where
defendant understood that he could remain silent and that he  was
making a statement that could be used against him); McGregor, 885
P.2d at 1378 (valid waiver where defendant understood what he was
doing  when  he made his statements); Morris, 766  P.2d  at  1392
(valid waiver where defendant could understand and appreciate the
rights  that  he waived); Cephas, 522 A.2d at 66 (invalid  waiver
where defendant was incapable of comprehending the meaning of the
Miranda warnings at the time he was interrogated).

24     At   the  first  appearance,  after  Judge  Landry   asked
Forster  if he was going to have an attorney assist him,  Forster
said,  [I]nstead of having an attorney, I would like to  have  my
my pastor as my witness.

     25   See Nashoalook, 663 P.2d at 979 n.2.

     26    It  appears  to  be uncontested that  Officer  Watsons
pepper spray was still snapped and secured on his belt after  the

27    See  Spring,  479  U.S. at 576-77, 107  S.  Ct.  at  858-59
(citing  Moran,  475  U.S. at 422, 106 S. Ct.  at  1141)  (for  a
Miranda  waiver  to be valid, police are not required  to  supply
information  that would merely affect the wisdom of the  waiver);
State  v. Kaahanai, 747 P.2d 1276, 1281 (Haw. 1987) (the  Miranda
rights  waiver is calibrated to ensure the voluntary and  knowing
nature of the waiver, not its ultimate wisdom); State v. Norfolk,
381  N.W.2d 120, 127 (Neb. 1986) (In reference to a waiver of the
rights  designated  in the Miranda warning,  intelligent  is  not
synonymous  with  prudent, and intelligence is not  equated  with
wisdom.)  (citation omitted); Wayne R. LaFave, Jerold H.  Israel,
Nancy  J. King, Orin S. Kerr, Criminal Procedure  6.9(b)  at  824
(3d  ed. 2007) (it is not in the sense of shrewdness that Miranda
speaks   of   intelligent  waiver,  and  thus  in  this   context
intelligence  is  not  equated with wisdom) (quoting  Collins  v.
Brierly,  492 F.2d 735 (3d Cir. 1974)) (internal quotation  marks

     28    See Dolchok v. State, 639 P.2d 277, 281 (Alaska 1982);
Trumbly v. State, 515 P.2d 707, 708 (Alaska 1973); cf. Bowker  v.
State, 373 P.2d 500, 501-02 (Alaska 1962).

     29   100 P.3d 440 (Alaska App. 2004).

     30   422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).

     31   470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).

     32   Crawford, 100 P.3d at 446-47.

33    Stock  v.  State,  191 P.3d 153, 156  (Alaska  App.  2008);
Noyakuk v. State, 127 P.3d 856, 863 (Alaska App. 2006).

     34   Crawford, 100 P.3d at 441 (quoting Elstad, 470 U. S. at
310-11, 105 S. Ct. at 1294) (alteration in Crawford).

     35    Elstad,  470 U.S. at 311, 105 S. Ct. at 1294  (quoting
Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 416,
9 L. Ed. 2d 441 (1963)).

     36   903 P.2d 1090 (Alaska App. 1995).

37   Id. at 1098 (citations omitted).

     38    Id.  at 1099 n.4 (citing United States v. Knight,  395
F.2d 971, 975 (2nd Cir. 1968)).

39   Id. at 1098.

     40    See  Moreau  v.  State, 588 P.2d 275,  279-80  &  n.13
(Alaska  1978);  Longley v. State, 776 P.2d 339,  343-44  (Alaska
App. 1989).

     41    See Munson v. State, 123 P.3d 1042, 1048 (Alaska 2005)
(citing  Davis v. United States, 512 U.S. 452, 459,  114  S.  Ct.
2350, 129 L. Ed. 2d 362 (1994)).

     42   See Berghuis, 130 S. Ct. at 2259-60, 2010 WL 2160784 at
*8-9 (holding that an accused must unambiguously invoke the right
to remain silent); State v. Bailey, 714 S.W.2d 590, 593 (Mo. App.
1986)  (holding a suspects request for some time to  think  alone
was not an invocation of the right to silence); State v. Bey, 548
A.2d  887,  892-93 (N.J. 1988) (holding request to lie  down  and
think about what happened not a clear invocation of the right  to
silence); State v. Domagalski, 378 N.W.2d 297, 297 n.7 (Wis. App.
1985)  (table,  text in Westlaw, No. 85-509-CR) (A  persons  bare
statement  that  he is tired and wants to sleep is  not,  without
more, an invocation of his right to silence.).

43    Rothgery  v.  Gillespie County, Texas, 554  U.S.  191,  128
S. Ct. 2578, 2592,  171 L. Ed. 2d 366 (2008).

     44   Id., 128 S. Ct. at 2591.

     45    Montejo v. Louisiana, 556 U.S. ___, 129 S.  Ct.  2079,
173 L. Ed. 2d 955 (2009).

     46    487  U.S.  285, 108 S. Ct. 2389, 101  L.  Ed.  2d  261

     47   Id. at 298-99, 108 S. Ct. at 2398.

     48   Id. at 287-88, 108 S. Ct. at 2392.

     49   Montejo, 129 S. Ct. at 2091.

     50    See Blue v. State, 558 P.2d 636, 641-42 (Alaska  1977)
(extending  right  to  counsel  to defendant  subjected  to  pre-
indictment    lineup   while   in   custody,    absent    exigent
circumstances); Alexander v. Anchorage, 490 P.2d 910, 915 (Alaska
1971)  (extending  right to counsel to all criminal  prosecutions
involving  the possibility of incarceration); Roberts  v.  State,
458 P.2d 340, 342-43 (Alaska 1969) (extending right to counsel to
prisoner  from  whom  the police sought to obtain  a  handwriting
exemplar after indictment and appointment of counsel).

     51   See McGill v. State, 18 P.3d 77, 81 (Alaska App. 2001).

     52   See Marrone v. State, 653 P.2d 672, 675-81 (Alaska App.
1982)  (when the applicable law can be reasonably disputed, there
is no plain error).

     53   AS 12.55.125(a).

     54   See former AS 33.16.090(b) (2004) (A prisoner sentenced
to  a  mandatory 99-year-term under AS 12.55.125(a)  ...  is  not
eligible  for discretionary parole during the entire  term.);  AS
33.20.010(a)(1)  (A  prisoner is not eligible  for  a  good  time
deduction  if the prisoner has been sentenced to a ...  mandatory
99-year term of imprisonment under AS 12.55.125(a)[.]).

     55    530  U.S.  466, 120 S. Ct. 2348, 147  L.  Ed.  2d  435

56    542  U.S.  296,  124  S.  Ct.  2531,  159  L.  Ed.  2d  403

     57    Blakely, 542 U. S. at 301, 124 S. Ct. at 2536 (quoting
Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63).

     58   46 P.3d 949 (Alaska 2002) (Malloy I).

     59   Id. at 954.

     60    See Malloy v. State, 153 P.3d 1003, 1011  (Alaska App.
2007) (Malloy II) (the restriction on good-time credit would have
violated the ex post facto clauses of both the federal and  state
constitutions  because  Malloy committed her  crimes  before  the
amended statute took effect).

     61    AS 33.20.040(a); State v. Staael, 807 P.2d 513 (Alaska
App. 1991).

62    See,  e.g.,  People v. Murphy, 21 Cal.  Rptr.3d  769,  772-
73  (Cal.  App. 2004); Jenner v. Ortiz, 155 P.3d 563, 565  (Colo.
App.  2006);  People v. Robinson, 892 N.E.2d 39,  44  (Ill.  App.
2008); People v. Fender, 757 N.E.2d 645, 652-54 (Ill. App. 2001);
State  v. Montoya, 114 P.3d 393, 397-98 (N.M.  App. 2005);  State
v.  Clark,  134  P.3d  1074, 1077-78 (Or. App.  2006);  State  v.
Spencer, 114 P.3d 1222, 1228 (Wash. App. 2005).

     63   See AS 12.55.125(a)(1)-(5).

     64   Malloy I, 46 P.3d at 956 (quoting Apprendi, 530 U.S. at
494, 120 S. Ct. at 2365).

     65   Id. at 956.

     66   Id. at 954.

     67    Hampel v. State, 911 P.2d 517, 521 (Alaska App.  1996)
(emphasis added) (quoting AS 33.20.010(a)).

     68   State v. McCallion, 875 P.2d 93, 95, 98-99 (Alaska App.

     69    AS 33.20.030; see Smith v. State, Dept of Corrections,
872  P.2d 1218, 1226-27 (Alaska 1994); Hill v. State, 22 P.3d 24,
27 (Alaska App. 2001).

     70    AS 33.20.050; Briggs v. Donnelly, 828 P.2d 1207, 1208-
09 (Alaska App. 1992).

     71   See AS 12.55.125(a)(1)-(5) (mandatory 99-year sentence)
&  AS 33.20.010(a)(2)-(3) (making certain prisoners with multiple
felony convictions ineligible for good time).

72   Malloy I, 46 P.3d at 956.

     73   785 A.2d 672 (D.C. 2001).

     74   Id. at 680.

     75    See McMillan v. Pennsylvania, 477 U.S. 79, 81-82,  93,
106  S.  Ct. 2411, 2413-14, 2420, 91 L. Ed. 2d 67 (1986) (holding
it  permissible  to increase a mandatory minimum  sentence  based
solely on facts found by the sentencing judge).

     76   Keels, 785 A.2d at 684 (citation omitted).

77   Malloy I, 46 P.3d at 957.

     78    Lapp  v.  State, 220 P.3d 534, 537 (Alaska App.  2009)
(citing Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971)).

     79   Smith v. State, 892 P.2d 202, 203 (Alaska App. 1995).

     80    See  Napayonak v. State, 793 P.2d 1059,  1063  (Alaska
App.  1990); State v. LaPorte, 672 P.2d 466, 468-69 (Alaska  App.

     81    Ch.  71,  2, SLA 1993; see State v. Walker,  887  P.2d
971,  975-76 (Alaska App. 1994).  As discussed later in the  text
of  this opinion, both before and after 1993, the State also  had
the  right  to appeal a sentence as too lenient.  See  former  AS
22.07.020(d)(2) (pre-1993 version); AS 12.55.120(b).

     82   AS 22.07.020(d)(2).

     83   Ch. 71,  1, SLA 1993; see also Committee Minutes, House
Judiciary Committee discussion of H.B. 181 (March 8, 1993).

     84   Compare United States v. Edmonson, 792 F.2d 1492, 1496-
97  (9th Cir. 1986), with United States v. Denson, 588 F.2d 1112,
1125-27 (5th Cir. 1979), modified on rehearing en banc, 603  F.2d
1143  (5th Cir. 1979); see also United States v. Horak, 833  F.2d
1235,   1246-48  (7th  Cir.  1987)  (discussing  this  split   in
authority,  and  holding that 18 U.S.C.  3731 did  not  authorize
appeals from sentencing decisions).

     85    See Ch. 71,  1-5, SLA 1993; Minutes of House Judiciary
Committee,  House  Bill  181, (March 8,  1993);  see  also  House
Judiciary  Committee file on H.B. 181 (sponsor statement,  fiscal
note, and Division of Legal Services sectional summary).

86   AS 12.55.120(b); AS 22.07.020(b).

     87    See  State v. Gibson, 543 P.2d 406, 408 (Alaska 1975),
overruled  on  other  grounds by State v. Dunlop,  721  P.2d  604
(Alaska 1986).

     88    See  State  v. Occhipinti, 562 P.2d 348,  349  (Alaska
1977);  Dunham v. City and Borough of Juneau, 790 P.2d  239,  241
(Alaska  App. 1990), receded from on other grounds in  Curtis  v.
State, 831 P.2d 359, 360-61 (Alaska App. 1992); LaPorte, 672 P.2d
at 468-69 & n.6.

     89    The legislature explicitly retained the limitation  on
our  authority  to modify a sentence the State  appealed  as  too
lenient when it otherwise broadened the States right to appeal in
criminal   cases  in  1993.  See  Ch.  71,   4,  SLA   1993;   AS

     90   See Alaska Appellate Rule 402(b)(2).

     91    See Nell v. State, 642 P.2d 1361, 1368-69 (Alaska App.
1982) (citing Thessen v. State, 508 P.2d 1192, 1197 (Alaska 1973)
overruled on other grounds by Dunlop, 721 P.2d at 610).

     92    See Koteles v. State, 660 P.2d 1199, 1202 (Alaska App.
1983)  (Singleton, J., concurring) (describing the discussion  of
this provision at the Alaska Constitutional Convention, including
the  interpretation  of  the  similar  language  of  the  Indiana

     93    See Dancer v. State, 715 P.2d 1174, 1182 (Alaska  App.
1986)  (citing  Koteles,  660  P.2d at  1202-03  (Singleton,  J.,

     94   See id. at 1177-79.

     95   AS 12.55.175.

     96   AS 12.55.125(j).

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