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Silvera v. State (12/17/2010) ap-2285

Silvera v. State (12/17/2010) ap-2285

        The text of this opinion can be corrected before the opinion is published in thePacific 
        Reporter.   Readers are encouraged to bring typographical or other formal errors to 
        the attention of the Clerk of the Appellate Courts. 

                               303 K Street, Anchorage, Alaska  99501
                                         Fax:   (907) 264-0878
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MICHAEL A. SILVERA,                              ) 
                                                 )         Court of Appeals No. A-10269 
                            Appellant,           )         Trial Court No. 2NO-07-359 CR 
             v.                                  ) 
                                                 )                O    P   I  N  I  O  N 
STATE OF ALASKA,                                 ) 
                            Appellee.            ) 
                                                 )          No. 2285 - December 17, 2010 

                Appeal from the Superior Court, Second Judicial District, Nome, 
                Ben J. Esch, Judge. 

                Appearances: Renee McFarland, Assistant Public Defender, and 
                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 
                Ann B. Black, 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, 

                BOLGER, Judge. 

                Michael A. Silvera was convicted of second-degree assault after he cut David 

Moore in the face with a knife during an argument between Moore and Silvera's fiancée. 

Silvera argues that there was insufficient evidence for the jury to find that his conduct 

----------------------- Page 2-----------------------

was not justified in defense of his fiancée.  We conclude after reviewing the record that 

there was sufficient evidence for the jury to find that Silvera's assault was not justified. 

               Silvera also argues, for the first time on appeal, that he was entitled to an 

evidentiary hearing on his claim that the prosecutor rolled his eyes and engaged in other 

nonverbal conduct that impermissibly conveyed his personal opinion of the evidence to 

the jury. We conclude that Silvera has not shown that the court's failure to hold a hearing 

was plain error. 

               Silvera attacks his sentence on two grounds.  He argues that the sentencing 

court was clearly mistaken in refusing to refer his case to the three-judge sentencing panel 

for consideration of his extraordinary potential for rehabilitation and the harsh collateral 

consequences of his one-year sentence.       He also argues that the sentencing court erred 

by rejecting his claim that his assault was mitigated due to "serious provocation" by the 

victim.   We conclude that the sentencing court was not clearly mistaken in refusing to 

refer Silvera's case to the three-judge panel.  But we conclude that the sentencing court 

applied the wrong legal test in ruling that Silvera had failed to establish the statutory 

mitigating factor of "serious provocation" by the victim.  We therefore remand the case 

to the superior court for reconsideration of this issue. 

       Facts and proceedings 

              Early on the morning of June 3, 2007, Richard Weinstein, a taxicab driver 

in Nome, picked up passengers outside a bar called the Dexter Roadhouse, which had 

just closed for the night.  All of the passengers had been drinking.     Michael Silvera sat 

in the front passenger seat of the cab and his fiancée, Andrea Surina, sat next to him on 

the same seat, sitting sideways facing the driver.    David Moore sat on the bench seat 

directly behind the driver, and his friend, Chris Christensen, sat next to him.  There was 

                                            - 2 -                                      2285

----------------------- Page 3-----------------------

another bench seat behind that, occupied by Briday Green, a friend of Silvera's, and 

Green's companion, John MacInerney. 

              Surina asked Weinstein to take the scenic route home so they could look 

for wildlife.  Moore objected, saying he wanted to go directly home because he had to 

work that morning. An argument ensued. Silvera managed to calm Surina down, bringing 

a temporary end to the argument.     But then the argument "flared up like a grease fire." 

 According to Silvera, Moore called Surina a "whore."       Weinstein testified that Surina 

and Silvera both jumped out of their seat toward Moore, and that Silvera said, "I'm going 

to kill you," and cut Moore in the face with a knife.     MacInerney intervened, grabbing 

Silvera's arm and holding it, even though Silvera yelled at him to let go.  In an effort to 

avoid more violence, Weinstein dropped Silvera and Surina off at their residence before 

driving Moore to the emergency room. Once all the other passengers had been delivered 

to their destinations, Weinstein reported the incident to the police.     Moore had a knife 

wound to the left temple that required nine stitches and left a scar. 

              Nome Police Officers Greg Bonham and Mark Harreus interviewed Silvera 

and Surina at their residence later that morning.    Silvera initially denied cutting Moore 

with a knife, saying he used his fist.   But before long Silvera acknowledged that he had 

a knife in his hand when he hit Moore, and he retrieved the knife and gave it to the police. 

He had already washed the blood off the knife.   The knife was a lock-back knife with a 

three-inch blade and a thumbscrew that made it easy to open quickly. 

              At trial, Silvera testified that he attacked Moore to protect Surina.  He said 

Moore kicked Surina and called her a whore, and then reached toward Surina as if he was 

going to hit her.  Silvera said he pushed Surina out of the way and got up and hit Moore. 

He said he never intended to use a knife but had absent-mindedly been fiddling with the 

knife in his pocket.   He said he was surprised when he got home and saw blood on the 


                                            -  3 -                                     2285

----------------------- Page 4-----------------------

              Silvera called several witnesses on his behalf.  Dennis Hammond, another 

cab driver, testified that he heard Weinstein tell another cab driver on the dispatch line 

that he did not know what happened during the incident because he was concentrating 

on driving.  Briday Green, the friend of Silvera's who had been riding in the back seat 

of the cab, testified that she saw the victim, Moore, get out of his seat and move toward 

Surina and Silvera, and that MacInerney had to restrain Moore.  She said she never saw 

Silvera move from his seat.  But Green admitted on cross-examination that this was not 

what she told the police; she told the police that Silvera may have gone after Moore twice, 

and that Surina and MacInerney had to restrain Silvera. 

              At the close of the State's case, Silvera made a motion for judgment of 

acquittal, which Superior Court Judge Ben J. Esch denied. 

              In closing argument, Silvera claimed that his conduct was justified because 

he acted in defense of Surina.    The jury rejected this defense and convicted Silvera of 
second-degree assault.1 

              After the jury's verdict, but before sentencing, Silvera filed a motion for a 

new trial, arguing that five jurors had witnessed eye-rolling and other inappropriate facial 

expressions by   the prosecutor throughout the trial.     Silvera argued that this conduct 

deprived him of a fair trial because it conveyed the prosecutor's personal opinion about 

his guilt and veracity, and suggested that the prosecutor had personal knowledge of facts 

not in evidence. Judge Esch denied the motion, ruling that Alaska Evidence Rule 606(b) 

prohibited this inquiry into the subjective mental processes of the jurors. 

              At sentencing, Judge Esch rejected Silvera's proposed mitigators and his 

request that the case be referred to the three-judge panel.    He sentenced Silvera to two 

years with one year suspended.     Silvera appeals. 

       1   AS 11.41.210(a)(1). 

                                            - 4 -                                        2285 

----------------------- Page 5-----------------------


               There was sufficient evidence to convict Silvera of second-degree assault. 

               Silvera's first claim is that there was insufficient evidence to convict him 

of second-degree assault.    In ruling on a claim of insufficient evidence, this court must 

consider the evidence in the light most favorable to the jury's verdict and determine 
whether a fair-minded juror could find guilt beyond a reasonable doubt.2 

              As charged in this case, second-degree assault required proof that Silvera 

intended to cause physical injury to Moore, and that Silvera caused this injury "by means 
of a dangerous instrument."3   Silvera does not dispute the State's proof of these elements 

of the offense.  Instead, he claims that there was insufficient evidence for the jury to find 

that his conduct was not justified.   Because Silvera offered some evidence that he acted 

in defense of Surina, the State had to prove beyond a reasonable doubt that Silvera did 

not act reasonably in defense of others. 

              A person is justified in using force to defend a third person if he reasonably 
believes the third person would be justified in using that degree of force in self-defense.4 

       2   Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009);Daniels v. State, 767 P.2d 

1163, 1167 (Alaska App. 1989). 

       3   AS 11.41.210(a)(1). 

       4   AS 11.81.340 provides: 

              A person is justified in using force upon another when and to the 
           extent the person reasonably believes it is necessary to defend a third 
           person when, under the circumstances as the person claiming defense 
           of another reasonably believes them to be, the third person would be 
           justified under AS 11.81.330 or 11.81.335 in using that degree of force 
           for self-defense. 

                                            -  5 -                                      2285

----------------------- Page 6-----------------------

A   person   is   justified   in   using   nondeadly   force5   when   and   to   the   extent   the   person 

reasonably believes it is necessary to defend against unlawful force by the other person.6 

               A person is justified in using deadly force when and to the extent the person 
reasonably believes it is necessary to defend against death or serious physical injury.7 

A person uses "deadly force" when he uses force knowing that the circumstances create 
a substantial risk of death or serious physical injury.8 

                 Silvera argues that the State did not present enough evidence that he knew 

his conduct posed a risk of death or serious physical injury to prove that he used deadly 

force when he struck Moore, given his testimony that he was not aware a knife was in 

his hand.     But the jury was not required to believe Silvera's testimony on this issue. 

Moreover, we need not decide whether the State presented enough evidence to prove that 

Silvera used deadly force, because a fair-minded juror could find based on the evidence 

in this case that Silvera was not justified in using even nondeadly force in defense of 


                 At trial, Moore testified that he had a heated argument with Silvera and 

Surina, but that the argument was not physical until Silvera attacked him with a knife. 

Weinstein,   the   cab   driver,   testified   that   he   did   not   see   Moore   leave   his   seat   or   act 

aggressively, and that he did not hear Moore say anything to precipitate Silvera's attack. 

(Green and Silvera both testified that Moore called Surina a "whore.")                     Weinstein said 

he saw Surina leap into the back seat, and that Silvera followed almost immediately. 

        5   See   AS   11.81.900(b)(38)   ("'nondeadly   force'   means   force   other   than   deadly 


        6   AS 11.81.330(a). 

        7   AS 11.81.335(a)(1)-(2). 

        8   AS 11.81.900(b)(16). 

                                                   -  6 -                                             2285

----------------------- Page 7-----------------------

Weinstein heard Silvera say, "I'm going to kill you"      twice.  Then someone in the cab 

said, "Oh my God.      You're cut, you're bleeding."      Weinstein saw MacInerney grab 

Silvera's arm and hold it, even though Silvera yelled at him to let go. Weinstein said when 

he reported the incident to the police, he showed them that there was blood on the seat 

where Moore had been sitting. 

              Christensen, who was sitting next to Moore, testified that he did not see 

Moore do anything to provoke the attack. Green, who was sitting in the back seat, testified 

that Moore got out of his seat and moved toward Surina and Silvera, and that Silvera never 

moved from the front seat.   But Green admitted that she did not tell the police this when 

she was interviewed shortly after the assault. At that time, she told the police that Silvera 

may have gone after Moore twice, and that Surina and MacInerney had to hold Silvera 


              Given this record, a fair-minded juror could find that there was no violence 

or threat of violence until Silvera leaped into the back seat and cut Moore in the face with 

a knife.  A fair-minded juror could also find that Silvera threatened to kill Moore twice, 

and that other passengers had to restrain Silvera from assaulting Moore a second time. 

Lastly, a fair-minded juror could find that a reasonable person in Silvera's position would 

not conclude based on this evidence that any force, even nondeadly force, was necessary 

to defend Surina against Moore. 

               Silvera argues that no reasonable juror could reject his testimony that Moore 

kicked Surina and made an aggressive move toward her.           He argues that Weinstein's 

contrary testimony that the attack on Moore was unprovoked was not credible because 

Weinstein was watching the road and could not have seen what Moore was doing in the 

back seat.  In other words, Silvera argues that we should view the evidence in the light 

most favorable to him, crediting his testimony about Moore's conduct and discrediting 

the testimony of Weinstein, Moore, and Christensen.        But when we rule on a claim of 

                                            -  7 -                                      2285

----------------------- Page 8-----------------------

insufficient evidence, we do not weigh the credibility of witnesses, we view the evidence 
in the light most favorable to the jury's verdict.9       Applying this rule, we conclude that the 

State presented sufficient evidence for a fair-minded juror to find that Silvera's assault 

on Moore was not justified. 

                 The court's failure to hold an evidentiary hearing to determine whether the 
                prosecutor engaged in misconduct was not plain error . 

                After the jury's verdict, Silvera's attorney filed a motion for a new trial, 

asserting that a number of jurors had witnessed eye-rolling and other nonverbal conduct 

by the prosecutor that conveyed the prosecutor's personal opinion regarding Silvera's 

guilt and veracity and suggested that the prosecutor had personal knowledge of facts 

outside the record.  Silvera's attorney claimed she had not seen this conduct during trial 

due to the layout of the courtroom, and therefore did not object or request a curative 

instruction.    The attorney supported her motion with an affidavit stating that a number 

of jurors told her they observed this conduct by the prosecutor throughout the trial.  The 

attorney's   affidavit   went   on   to   relate   the   influence   this   conduct   had   on   the   jury's 


                Based on this affidavit, Judge Esch found that "it appears ... that jurors did 

receive information that [the prosecutor] was communicating with body language or 

otherwise." But Judge Esch ruled that Evidence Rule 606(b) barred him from considering 

any evidence concerning what the jurors observed, because that inquiry would necessarily 
take account of the jurors' mental processes.10 

        9   Anthony v. State , 521 P.2d 486, 492 (Alaska 1974). 

        10  Evidence Rule 606(b) provides that: 

            Upon an inquiry into the validity of a verdict or indictment, a juror 
            may   not   be   questioned   as   to   any   matter   or   statement   occurring 

                                                  - 8 -                                               2285 

----------------------- Page 9-----------------------

                Silvera filed a motion for reconsideration, arguing that the trial court had 

misinterpreted Evidence Rule 606(b). Silvera argued that it was unnecessary for the court 

to inquire into the jurors' subjective interpretations of the prosecutor's conduct to establish 

that a new trial was warranted - the court only had to find that the prosecutor's conduct 

"in fact convey[ed] a personal opinion and [that] it is objectively likely that any one of 

the jurors would be influenced by that personal opinion."              Silvera did not ask the court 

for an evidentiary hearing; instead, he submitted additional affidavits recounting the 

interviews with the jurors, and asked the court to grant him a new trial based on those 

affidavits.  Judge Esch did not rule on the motion for reconsideration, so it was deemed 

                Silvera now argues that Judge Esch erred by not granting him an evidentiary 

hearing "to determine what, if anything, the jurors witnessed."   Because Silvera did not 
ask for this hearing in superior court, he must show plain error.12 

                The Alaska Supreme Court and this court have held that it is improper for 

a prosecuting attorney to express a personal opinion concerning the credibility of a witness 

            during the course of the jury's deliberations or to the effect of any 
            matter or statement upon that or any other juror's mind or emotions 
            as influencing the juror to assent to or dissent from the verdict or 
            indictment or concerning the juror's mental processes in connection 
            therewith, except that a juror may testify on the question whether 
            extraneous prejudicial information was improperly brought to the 
            jury's attention or whether any outside influence was improperly 
            brought   to   bear   upon   any   juror.  Nor   may   a   juror's   affidavit   or 
            evidence of any statement by the juror concerning a matter about 
            which the juror would be precluded from testifying be received for 
            these purposes. 

        11  See Alaska R. Crim. P. 42(k)(4). 

        12  See Owen M. v. State, Office of Children's Servs., 120 P.3d 201, 203 (Alaska 


                                                  -  9 -                                           2285

----------------------- Page 10-----------------------

 or   the   guilt   of   the   accused.13 In  Darling   v.   State,   the   supreme   court   explained   the 

 reasoning behind this rule: 

                  The vice sought to be guarded against by such a rule is the 
                  introduction       into  evidence     of  the   unsworn      testimony     of 
                  counsel in which he states either explicitly or implicitly that 
                  his opinion as to the credibility of a witness is based upon 
                  personal knowledge of the witness.14 

At issue in Darling were remarks the prosecutor made during his closing argument to the 
jury, which were part of the formal record of the trial. 15 

                 In this case, the conduct at issue was apparently witnessed only by the jury 

and did not come to the attention of Silvera's attorney or the trial judge until after the jury 

returned its verdict. Consequently, the only evidence Silvera presented to Judge Esch were 

the assertions of jurors. 

                 Evidence Rule 606(b) generally prohibits parties from offering juror testimony 

or affidavits to impeach the jury's verdict.  The aim of this limitation is "to protect jurors 

from   harassment,   to   encourage   free   jury   deliberation,   and   to   promote   the   finality   of 
verdicts."16    Because of the competing interest in "ensuring that verdicts are accurate and 

that   they   are   reached   through   a   fair   process,"17    Rule   606(b)   contains   two   express 

exceptions:      it allows juror testimony or affidavits if they are offered to establish (1) 

"whether       extraneous     prejudicial    information      was   improperly      brought    to  the   jury's 

          13  Darling v. State, 520 P.2d 793, 794 (Alaska 1974); Noel v. State, 754 P.2d 280, 

 283 (Alaska App. 1988). 

          14  Darling, 520 P.2d at 794. 

          15  Id. at 793-94. 

          16  Titus v. State, 963 P.2d 258, 261 (Alaska 1998). 

          17  Id. 

                                                    -  10 -                                              2285

----------------------- Page 11-----------------------

attention" or (2) "whether any outside influence was improperly brought to bear upon any 
juror." 18 

                 Even in these limited circumstances courts may not consider juror testimony 

or affidavits that concern the effect of extraneous information or outside influence on a 

juror's   reasoning   process.      A   court   evaluating   the   likelihood   that   a   juror's   vote   was 

influenced by potentially prejudicial matter outside the record "must apply an objective 

test and is precluded from considering evidence concerning the subjective impact of the 
extraneous matter on any juror."19          This approach, articulated in the commentary to ABA 

Standard 8-3.7, 

                 directs   the   court's   inquiry   only   to   the fact of   exposure   to 
                 extrajudicial material.   The ultimate issue of influence on the 
                 juror is resolved by reference to the substantial likelihood test, 
                 an objective standard.        In effect, the court must examine the 
                 extrajudicial material and then judge whether it is inherently 
                 likely to have influenced the juror.20 

                 Citing   this   authority,   Silvera   argues   that   the   superior   court   should   have 

considered   the   jurors'   assertions   in   the   affidavits   he   offered   to   the   extent   that   they 

established the objective facts of the prosecutor's eye-rolling and other nonverbal conduct. 

                 It could be argued that the juror affidavits submitted by Silvera were wholly 

inadmissible. The relevant portion of Evidence Rule 606(b) states that a court is prohibited 

from receiving the testimony or affidavits of jurors when offered to impeach a verdict, 

unless the testimony or affidavits relate to "whether extraneous prejudicial information 

was improperly brought to the jury's attention."  This court has stated that, for purposes 

          18  Alaska R. Evid. 606(b); Larson v. State, 79 P.3d 650, 654 (Alaska App. 2003); see 

 Swain v. State, 817 P.2d 927, 932-33 (Alaska App. 1991). 

          19  Swain, 817 P.2d at 932. 

          20  Id.   (citing  II Standards     for  Criminal     Justice   commentary      to  §  8-3.7   at  58 

 (Approved Draft 1978 & Supp. 1982)). 

                                                    -  11 -                                             2285

----------------------- Page 12-----------------------

of Rule 606(b), "extraneous" information means information that reaches the jurors other 

than through the normal trial process. Thus, when a lawyer engages in improper argument, 

or when a witness gives a non-responsive answer, or offers objectionable testimony, or 

makes an otherwise improper statement in open court, these improprieties do not constitute 
"extraneous" information within the meaning of Rule 606(b).21 

                 We   are   aware   of   some   federal   authority   suggesting   that   there   may   be 

occasions when information that reaches the jury through the normal trial process may 
still be deemed "extraneous" for purposes of the federal analog to Evidence Rule 606(b).22 

The parties have not briefed this issue.            And, as we are about to explain, we need not 

resolve this issue - because, even if the affidavit Silvera submitted in superior court was 

admissible under Evidence Rule 606(b), it fails to establish that Silvera is entitled to relief. 

                 During argument on Silvera's new trial motion, Silvera's attorney submitted 

an affidavit summarizing what the jurors had told her about the prosecutor's conduct.  For 

purposes of this decision, we accept as true the statements attributed to the jurors in this 

affidavit.   We do not consider the additional affidavits attached to Silvera's motion for 
reconsideration.23   We also disregard those statements in the attorney's affidavit concerning 

         21   Turpin v. State, 890 P.2d 1128, 1131 (Alaska App. 1995) (citing 2 Stephen A. 

 Saltzburg, et al., Federal Rules of Evidence Manual at 777 (6th ed. 1994)); see also Tellier 
 v.  Ford   Motor   Co.,   827   P.2d   1125,   1127   n.1   (Alaska   1992)   (stating   that   an   improper 
 reference to a party's prior conviction in a trial exhibit is not "extraneous" information); 
 Larson , 79 P.3d at 657-59 (holding that juror discussions about a defendant's guilt before the 
 case was submitted to the jury were not "extraneous" information). 

         22   See United States v. Hall, 85 F.3d 367, 368-69 (8th Cir. 1996); United States v. 

 Scisum, 32 F.3d 1479, 1481, 1483 (10th Cir. 1994); United States v. Bruscino, 662 F.2d 450, 
 456 (7th Cir. 1981), aff'd en banc, 687 F.2d 938 (7th Cir. 1982). 

         23   See Dunn v. Dunn, 952 P.2d 268, 271 n.2 (Alaska 1998) ("[It] is not appropriate 

 to present new evidence on a motion for reconsideration."). 

                                                   -  12 -                                             2285

----------------------- Page 13-----------------------

the subjective impact of the prosecutor's conduct on the jurors.24               The balance of the 

affidavit asserts only that the prosecutor rolled his eyes and made other body movements 
and facial expressions during the trial.25 

                To some degree, a lawyer's body language or facial reactions to the testimony 

of witnesses presented by the opposing party might be viewed as a natural occurrence 

during a heated trial. The affidavit that Silvera submitted does not connect the prosecutor's 

challenged conduct to the testimony of any particular witness or to any particular piece 

of   evidence;   nor   does   the   affidavit   establish   with  any  certainty   how   pervasive   the 

prosecutor's   reactions   were,   or   whether   the   prosecutor   appeared   to   be   intentionally 

directing these reactions to the members of the jury. 

                Nor can we speculate as to how the prosecutor's body language or facial 

expressions affected the jurors' deliberations.         Indeed, we must presume that the jurors 

followed the trial judge's instructions that the arguments of counsel were not evidence, 

and that the jurors should disregard counsels' characterizations of the evidence to the extent 

that these characterizations departed from the testimony actually given in court. 

                We thus conclude that Silvera has not met his burden to show that he was 
prejudiced by the prosecutor's conduct.26        That is not to say that we approve of an attorney 

engaging in nonverbal conduct that potentially conveys the attorney's personal opinion 

of the evidence or the credibility of witnesses to the jury.  But the affidavits submitted by 

Silvera do not establish that the prosecutor intentionally engaged in conduct of that nature. 

Moreover, regardless of whether the prosecutor's conduct was intentional or inadvertent, 

         24  Swain, 817 P.2d at 932. 

         25  The    affidavits  submitted    with  the  motion   for  reconsideration    state  that  the 

 prosecutor rolled his eyes, nodded his head, scoffed, and sighed. 

         26  See Howell v. State, 917 P.2d 1202, 1213 (Alaska App. 1996). 

                                                 -  13 -                                            2285 

----------------------- Page 14-----------------------

the affidavits do not establish that the prosecutor's conduct was so prejudicial that it was 

likely that Silvera's jury was influenced by it. 

              The facts asserted in Silvera's attorney's affidavit do not present any material 
factual dispute on the issue of prejudice that would have required an evidentiary hearing.27 

The superior court therefore did not commit plain error when it failed to hold an evidentiary 

hearing sua sponte. 

               The superior court applied the wrong legal test in rejecting Silvera's proposed 
              mitigator that he acted in response to serious provocation by the victim. 

               Silvera next argues that Judge Esch erred in rejecting two of his proposed 

mitigators: that the defendant in committing felony assault acted with serious provocation 
from the victim,28 and that the victim provoked the crime to a significant degree.29 

              The existence of a mitigating factor is a mixed question of law and fact.  On 

review, we must first assess the nature of the defendant's conduct - a factual finding 

reviewed for clear error - and then make the legal determination as to whether that 
conduct falls within the mitigating factor defined by statute.30 

              Because Silvera was convicted of second-degree assault, only the (d)(6) 
mitigator applies in his case.  As we explained in Smith v. State31: 

              mitigator (d)(7) does not apply to defendants who are being 
               sentenced for felony assault under AS 11.41.200-220. Instead, 
              mitigator (d)(6) defines the standard of provocation that, if 

        27  See Alaska R. Crim. P. 42(e)(3).

        28  AS 12.55.155(d)(6).

        29  AS 12.55.155(d)(7).

        30  Michael v. State, 115 P.3d 517, 519 (Alaska 2005).

        31  229 P.3d 221 (Alaska App. 2010).

                                            -  14 -                                      2285

----------------------- Page 15-----------------------

                proved, will mitigate these felony assaults, and mitigator (d)(7) 
                defines the lesser standard of provocation that applies to all 
                other felonies (except sexual felonies, which are not mitigated 
                by provocation).32 

                For purposes of the (d)(6) mitigator, "serious provocation" has the meaning 
applied to the heat of passion defense33: 

                "serious provocation" means conduct which is sufficient to 
                excite    an   intense   passion    in  a  reasonable     person    in  the 
                defendant's situation, other than a person who is intoxicated, 
                under the circumstances as the defendant reasonably believed 
                them   to   be;   insulting   words,   insulting   gestures,   or   hearsay 
                reports of conduct engaged in by the intended victim do not, 
                alone or in combination with each other, constitute serious 

                The nature of the provocation in this case is not entirely clear.              The jury's 

verdict did not necessarily resolve whether Silvera cut Moore with a knife because Moore 

called Surina a "whore" or, as Silvera claimed, because Moore kicked Surina and came 

at her aggressively. Nor did Judge Esch make findings on this issue at sentencing. Instead, 

Judge Esch ruled as a matter of law that Moore's conduct did not amount to "provocation" 

because it was not directed at Silvera or intended to influence his actions or emotions. 
                Judge Esch's ruling was based on our decision in Roark v. State.35                  Roark 

was convicted of manslaughter for the shooting death of Taylor, the man she lived with.36 

According to the sentencing judge's findings, Roark became angry with Taylor for using 

         32  Id. at 226.

         33  See AS 12.55.155(h).

         34  AS 11.41.115(f)(2).

         35  758 P.2d 644 (Alaska App. 1988).

         36  Id. at 644.

                                                  -  15 -                                            2285

----------------------- Page 16-----------------------

cocaine and locking himself in the bathroom for an extended period, and confronted him 

with a gun in the hope of forcing him out of the bathroom.                  Taylor opened the door and 
tried to grab the gun from Roark and was shot and killed in the ensuing struggle.37 

                 At sentencing, Roark unsuccessfully sought mitigator (d)(7), arguing that 
Taylor had "provoked the crime to a significant degree."38                  In affirming the sentencing 

court's rejection of that mitigator, we stated: 

                 When the victim directs actions or words at the defendant for 
                 the express purpose of eliciting a response, it is clear that the 
                 defendant may be said to have been "provoked."                  When the 
                 victim's     conduct    is  neither   directed    at  the  defendant     nor 
                 intended to influence the defendant's actions or emotions ... the 
                 mere   fact   that   it   has   the   incidental   effect   of   prompting   the 
                 defendant to react, thereby contributing in a causal sense to 
                 the   commission   of   the   crime,   would   not   in   itself   justify   a 
                 finding     of  provocation.      Between      these   two    hypothetical 
                 extremes is a broad middle ground in which the existence of 
                 provocation is best left to a case-by-case determination by the 
                 sentencing court, based on the totality of the circumstances.39 

                 As this explanation makes clear, we did not declare in Roark that a finding 

of significant provocation requires in every case conduct that is directed at the defendant 

or intended to influence the defendant's actions or emotions.                   Rather, we held that the 

provocation in Roark - behavior that was not directed at the defendant (or anyone else), 

and   that   only   incidentally   caused   the   defendant's   offense   -   fell   at   the   far   end   of   a 

continuum, and could not properly be viewed as significant provocation.                        Although in 

Roark we addressed mitigator (d)(7), we see no logical reason why our holding, which 

          37  Id. at 645. 

          38  Id. 

          39  Id. at 647. 

                                                    - 16 -                                                2285 

----------------------- Page 17-----------------------

relied on the common meaning of  "provoke," would not also apply to the (d)(6) "serious 

provocation" mitigator. 

               Judge Esch's interpretation ofRoark would preclude a finding of provocation 

in any case in which the provocation was directed at a third party. This broad interpretation 

of Roark would prohibit a finding of serious provocation in circumstances in which the 
heat   of   passion  defense  has  traditionally   been  allowed.40   The    classic  provocation 

envisioned by the common law was the defendant's observation of a spouse's adultery,41 

conduct that in the normal case is not directed at the defendant or intended to provoke his 

response. As we have previously noted, in adopting the definition of serious provocation, 

the Alaska Legislature apparently intended to codify the common-law doctrine of heat of 

               Because Judge Esch rejected mitigator (d)(6) on the ground that Moore's 

provocation was not directed at, or intended to influence, Silvera, the judge did not resolve 

disputed facts as to what type of provocation occurred; nor did he consider whether that 

provocation, if any, established the (d)(6) mitigator in other respects. We therefore remand 

the case for reconsideration of this question.      We note that the (d)(6) mitigator requires 

provocation     "sufficient  to  excite  an  intense  passion   in  a  reasonable  person   in  the 
defendant's situation"43 - the same amount or degree of provocation that would reduce 

        40  See Dandova v. State, 72 P.3d  325, 339 (Alaska App. 2003); 2 Wayne R. LaFave, 

 Substantive Criminal Law, § 15.2(b)(5), (b)(7) at 498, 502 (2d ed. 2003). 

        41  See Dandova, 72 P.3d at 339; 2 LaFave, Substantive Criminal Law, 

 § 15.2(b)(5) at 498. 

        42  Howell, 917 P.2d at 1209; see also Martin v. State, 664 P.2d 612, 616-17 (Alaska 

 App. 1983) (discussing the common-law roots of the Alaska statute). 

        43  AS 11.41.115(f)(2). 

                                              -  17 -                                        2285

----------------------- Page 18-----------------------

a murder to manslaughter.44        We have also held that "an element of proportionality [is] 

implicit in the heat of passion statute's requirement that provocation be 'serious.'"45 

"Th[is]    requirement     of  proportionality    involves    a  common      sense   balancing    of  the 
seriousness of the defendant's crime against the seriousness of the provocation."46 

                The court was not mistaken in rejecting non-statutory mitigating factors. 

                Silvera asked the sentencing court to refer his case to a three-judge panel for 

consideration of two non-statutory mitigating factors:            exceptionally good potential for 

rehabilitation and harsh collateral consequences. 

                A defendant is entitled to have his case referred to the three-judge sentencing 

panel if he proves two things by clear and convincing evidence: a mitigating factor not 

listed in AS 12.55.155(d), and that "it would be manifestly unjust to fail to adjust the 
presumptive term based on [this] non-statutory factor."47          Referral to the three-judge panel 

should occur only in exceptional cases.48 

                In sentencing Silvera to two years with one year suspended for second-degree 

assault, Judge Esch stressed the Chaney criteria of deterrence of others and reaffirmation 
of societal norms.49  He found that Silvera's background did not demonstrate a "significant 

need of rehabilitation," and that isolating Silvera from the public "really isn't a factor." 

         44  Smith, 229 P.3d at 225.

         45  Howell,   917    P.2d  at   1207  n.4  (citing  Roark,  758   P.2d  at  647-48);  see  also

 Dandova, 72 P.3d at 333 (recognizing this as the common-law rule). 

         46  Roark, 758 P.2d at 647. 

         47  Bossie v. State, 835 P.2d 1257, 1258 (Alaska App. 1992); see also Lloyd v. State, 

 672 P.2d 152, 154-55 (Alaska App. 1983); AS 12.55.165. 

         48  Lloyd, 672 P.2d at 155. 

         49  State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). 

                                                 -  18 -                                           2285

----------------------- Page 19-----------------------

Judge Esch nevertheless declined to find the non-statutory factor of extraordinary prospects 

for rehabilitation.    He explained: 

                The court has before it a 49-year-old first felony offender.  He 
                has two prior misdemeanors for a DUI and a driving while 
                license suspended some time ago. Fifteen, 18 years, whatever 
                it was.   He has an honorable discharge from the military.              I 
                believe he has job skills that have stood him in good stead in 
                the past, and he's suffering from an existing medical condition 
                that makes it impossible for him to work and carry those things 
                forward; he's on disability.       He evidences remorse for what 
                happened, but I don't believe those things constitute in and of 
                themselves an extraordinary prospect for rehabilitation.  So I 
                will not find that [the] non-statutory ... mitigating factor exists. 

Silvera argues that the sentencing court's rejection of this factor was error given the court's 

explicit findings that he "had no need for rehabilitation and was not a danger [to society]." 

                To establish the non-statutory mitigating factor of extraordinary prospects 

for rehabilitation, it was not enough for Silvera to show that he was genuinely remorseful 
and that his prospects for rehabilitation were better than the average50: 

                The superior court is justified in concluding that a defendant 
                has unusually good potential for rehabilitation only when "the 
                court     is  satisfied,   after  reviewing      the   totality   of  the 
                circumstances, that [the defendant] can adequately be treated 
                in   the   community and need not be incarcerated for the full 
                presumptive term in order to prevent future criminal activity." 
                Such a prediction ... should only be made when the sentencing 
                court is reasonably satisfied both that it knows why a particular 
                crime was committed and that the conditions leading to the 
                criminal act will not recur - either because the factors that led 
                the defendant to commit the crime are readily correctable or 

         50  Boerma v. State, 843 P.2d 1246, 1248 (Alaska App. 1992); Lepley v. State, 807 

 P.2d 1095, 1099-1100 (Alaska App. 1991). 

                                                 -  19 -                                           2285 

----------------------- Page 20-----------------------

                because the defendant's criminal conduct resulted from unusual 
                environmental stresses unlikely ever to recur.51 

                Judge Esch did not make explicit findings on these issues.  But based on the 

record, he reasonably could have concluded that Silvera had not adequately explained what 

precipitated his attack on Moore or convinced the court that the conditions that led to the 

attack were unlikely to recur.   Silvera testified that he witnessed customers get "mouthy 

and nasty" with his fiancée in the bar where she worked "all the time," but that he had 

never responded violently before.         He said on the night in question he reacted       "[i]n the 

heat of the situation," "instantaneously," and without reflection. He did not assert that the 

assault was due to unusual stresses in his life that were unlikely to be repeated; instead, 

he claimed that his actions were justified in defense of Surina and that he did not intend 

to injure Moore - both claims the jury rejected when it convicted him of second-degree 

assault.   Given   this   record,   Judge   Esch   could   reasonably   conclude   that   even   though 

Silvera's background demonstrated no significant need for rehabilitation, he had not shown 

that his potential for rehabilitation was so unusually good that his case must be referred 

to the three-judge panel. 

                Silvera also argues that the harsh collateral consequences of a sentence within 

the presumptive range required Judge Esch to refer his case to the three-judge panel. 

Silvera identified the harsh collateral consequences as deportation if he received a sentence 

of one year or more and the concomitant loss of the quality medical care he currently 

receives through the Veterans Administration. He pointed out that under the immigration 

code, a defendant convicted of a crime of violence and sentenced to at least one year, 

including     suspended     time,  is  guilty  of  an  "aggravated     felony"   and   is  subject   to 

         51  Lepley, 807 P.2d at 1100 (quoting Kirby v. State, 748 P.2d 757, 766 (Alaska App. 


                                                - 20 -                                            2285 

----------------------- Page 21-----------------------

deportation.52  Judge Esch concluded that the collateral consequences advanced by Silvera 

"certainly are significant, but I can't find they're manifestly unjust." 

                 Collateral consequences, including deportation, are appropriate sentencing 
considerations,53 and Silvera faces a particularly harsh consequence because he is disabled 

by illness and reportedly will lose his current medical treatment as a military veteran if 

he is deported.  But reducing Silvera's two-year sentence to less than one year, including 

suspended time, to remove his offense from the federal definition of "aggravated felony" 

would     result in a considerably more lenient sentence than the facts of this case would 

support - a more lenient sentence than a defendant with Silvera's background would 

receive if he were not subject to deportation.  Given this circumstance, Judge Esch was 

not clearly mistaken in concluding that a sentence within the presumptive range was not 
manifestly unjust.54 

         52  Under 8 U.S.C. § 1227(a)(2)(A)(iii), "any alien who is convicted of an aggravated 

 felony at any time after admission is deportable."             An aggravated felony is defined in 8 
 U.S.C. § 1101(a)(43)(F) as "a crime of violence ... for which the term of imprisonment [is] 
 at   least   one   year." Section   1101(a)(48)(B)   provides   that   "[a]ny   reference   to   a   term   of 
 imprisonment       or  a  sentence    ...  is  deemed   to  include   the   period   of  incarceration    or 
 confinement ordered by a court of law regardless of any suspension of the imposition or 
 execution of that imprisonment or sentence in whole or in part." 

         53  Dale v. State, 626 P.2d 1062, 1064 n.4 (Alaska 1980); State v. Tucker, 581 P.2d 

 223, 226 n.5 (Alaska 1978); Chaney, 477 P.2d at 446 n.22. 

         54  McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Lloyd, 672 P.2d at 154-55. 

                                                   - 21 -                                             2285

----------------------- Page 22-----------------------


              Because the superior court applied the wrong legal analysis in rejecting the 

"serious provocation" mitigator at sentencing, we REMAND the case for reconsideration 

of that issue.   We do not retain jurisdiction.  In other respects, we AFFIRM the decisions 

of the superior court. 

                                           - 22 -                                     2285
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