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Shinault v. State (5/27/2011) ap-2308

Shinault v. State (5/27/2011) ap-2308

        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 Courts. 

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ANNIE SHINAULT,                                 ) 
                                                )          Court of Appeals No. A-10358 
                           Appellant,           )         Trial Court No. 3AN-07-4047 CR 
             v.                                 ) 
                                                )                   O P I N I O N 
STATE OF ALASKA,                                ) 
                           Appellee.            ) 
                                                )            No. 2308 - May 27, 2011 

                Appeal from the Superior Court, Third Judicial District, 
                Anchorage, Patrick J. McKay, Judge. 

                Appearances:      Janella    K.  Combs,    Johnson    &  Combs,    P.C., 
                Kodiak, for the Appellant.   Ben Hofmeister, Assistant Attorney 
                General, Anchorage, and Daniel S. Sullivan, Attorney General, 
                Juneau, for the Appellee. 

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

                BOLGER, Judge. 

                Annie Shinault is challenging the sentence she received for her participation 

with her co-defendants Douglas McClain and Brenda Cleveland in the torture and abuse 

of two women. 

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


                McClain became convinced that a prostitute named M.J. had stolen crack, 

a pistol, a cell phone, and car keys from him when she came to his trailer to perform 

sexual services. He also believed that M.J. then urged her friends to rob him at gunpoint, 

stealing approximately $8,000 from him.             McClain's friend and co-defendant, Annie 

Shinault, picked up M.J. off the streets a few days later and took her to McClain's trailer. 

Over   the   following   three   days,   M.J.   was   beaten,   tortured,   and   sexually   abused   by 

McClain, Shinault, and a third co-defendant, Cleveland. 

                Another woman named V.B. came by to help clean up McClain's trailer in 

exchange for drugs while M.J. was there.             V.B. stole a crack pipe and some rolls of 

quarters from McClain. Shinault, Cleveland, and McClain then subjected V.B. to similar 

beatings and abuse. 

                Shinault     was    convicted    of   several   crimes    against    M.J.,   including 

kidnapping, first-degree sexual assault, fourth-degree assault, and harassment.  She was 

also convicted of misconduct involving weapons (for being a felon in possession of a 

concealable firearm) and fourth-degree assault committed against V.B.  Superior Court 

Judge Patrick J. McKay imposed a composite sentence of fifty-one years and 270 days' 


                Shinault had at least two prior felony convictions, so the presumptive range 
for her first-degree sexual assault conviction was forty to sixty years' imprisonment.1 

The judge imposed a forty-year sentence on this count, the minimum sentence within the 

presumptive range. 

    1   AS 12.55.125(i)(1)(E); AS 12.55.185(17). 


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                 Before   the   sentencing   hearing,   Shinault   submitted   a   request   for   Judge 

McKay to find a mitigating factor, based on AS 12.55.155(d)(2). This subsection allows 

a   sentence   below   the   presumptive   range   if   "the   defendant,   although   an   accomplice, 
played only a minor role in the commission of the offense."2 

                 The judge denied Shinault's request, and she now appeals this ruling.  We 

must   review   Judge   McKay's   factual   findings   for   clear   error,   but   we   independently 
determine whether, given these findings, the evidence establishes this mitigating factor.3 

                 Mitigating       factor   (d)(2)   is   not   intended     to  undermine       the  law    on 
complicity.4     A defendant is not entitled to a mitigated sentence merely because they act 

as an accomplice.5       In order to rely on this factor, the sentencing judge must be clearly 

convinced       that   the   defendant      played    only    a  minor     role   in   the   offense    under 

                 In this   case, Shinault brought Cleveland and M.J. to McClain's trailer, 

where   M.J.   was   beaten   and   tortured.       The   sexual   assault   conviction   was   based   on 

    2    AS 12.55.155(d)(2). 

    3   Michael v. State, 115 P.3d 517, 519-20 (Alaska 2005). 

    4    See  AS   11.16.110   ("A   person   is   legally   accountable   for   the   conduct   of   another 

constituting   an   offense   if   ...   with   intent   to   promote   or   facilitate   the   commission   of   the 
offense, the person ... aids or abets the other in planning or committing the offense."). 

    5    See Marzak v. State, 796 P.2d 1374, 1376 (Alaska App. 1990) (rejecting this factor 

where defendant arranged to have a co-defendant kill an adverse witness); Hale v. State, 764 
P.2d 313, 314, 316 (Alaska App. 1988) (rejecting this factor where the defendant procured 
the weapon used in an armed robbery and planned the offense); Abdulbaqui v. State , 728 
P.2d 1211, 1215 (Alaska App. 1986) (rejecting this factor where the defendant acted as a 
lookout for a store robbery). 

    6    AS 12.55.155(d)(2), (f)(1). 

                                                       3                                                 2308

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Shinault's conduct after M.J. was forced to strip off her clothes, whipped with a belt, and 

taken to a back bedroom.  Then Shinault said to Cleveland, "I want to see you fuck her 

with something."      In response, Cleveland put on a leather glove, put some Vaseline on 

it, and shoved her hand into M.J.'s anus, hard enough to make her cry.  Then Cleveland 

made M.J. lick the glove. 

                Judge McKay found that Shinault had been an active participant in M.J.'s 

abuse, beginning with her delivery of M.J. to McClain for retaliation.  The judge found 

that M.J. had been tortured, and that Shinault participated actively by burning her with 

a crack pipe and putting a sock in her mouth.             He found that Shinault had not merely 

encouraged Cleveland, but rather that Shinault had almost directed Cleveland to sexually 

assault M.J.     He found that Cleveland's decision to shove the soiled glove in M.J.'s 

mouth was horrific, and that Shinault's amusement during this assault was disgusting. 

                We conclude that Judge McKay's findings are reasonably supported by the 

trial testimony.    We likewise agree that, under these circumstances, Shinault failed to 

establish that she played only a minor role in this offense. 

                Shinault also argues that Judge McKay should havesua sponte referred her 

case   to   the   three-judge   sentencing   panel   for   consideration   of   a   sentence   below   the 

presumptive range.       Under AS 12.55.165, a sentencing judge is to refer a defendant's 

sentencing to the three-judge panel if the judge finds "that manifest injustice would result 

from ... imposition of a sentence within the presumptive range, [even after the sentence 

is] adjusted for [proven] aggravating or mitigating factors."   In other words, this statute 

directs a sentencing judge to refer a defendant's case to the three-judge panel if, given 

the applicable presumptive range of sentences and given the amount of adjustment that 

the   judge   is   authorized   to   make   for   aggravating   and   mitigating   factors,   the   judge 

                                                    4                                               2308

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

concludes that any sentence within his or her authority would be manifestly unjust under 
the circumstances of the defendant's case.7 

                Because Shinault was a third felony offender for presumptive sentencing 

purposes, she faced a presumptive range of forty to sixty years' imprisonment for the 

crime of first-degree sexual assault.  Shinault did not prove any mitigating factors, so the 

forty-year floor of the presumptive range was effectively the minimum sentence that 

Judge McKay could impose for the sexual assault.  Shinault was separately convicted of 

kidnapping, an unclassified felony with a mandatory minimum sentence of five years' 
imprisonment.8      Under AS 12.55.127(c)(2)(B), Judge McKay was obliged to make at 

least   five   years   of   Shinault's   kidnapping   sentence   consecutive   to   her   sexual   assault 

sentence.  Thus, Judge McKay was required to sentence Shinault to a minimum of forty- 

five years' imprisonment. 

                Shinault contends that Judge McKay committed plain error when, even in 

the absence of a defense request, he failed to see that any sentence within his authority 

would be manifestly unjust and that Shinault's case should therefore be referred to the 

three-judge   panel.     But   even   though   Shinault   describes   this   alleged   error   as   Judge 

McKay's failure to refer her case to the three-judge panel, as we explain below, Shinault 

is actually arguing that her sentence is excessive. 

                Judge McKay's failure to refer Shinault's case to the three-judge sentencing 

panel would constitute plain error only if all competent judges would conclude that it 

was manifestly unjust to sentence Shinault to even the most lenient term of imprisonment 

    7   Harapat v. State, 174 P.3d 249, 253-54 (Alaska App. 2007). 

    8   AS 11.41.300(c); AS 12.55.125(b). 

                                                    5                                                2308 

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available to Judge McKay.9          In other words, if we were to grant relief to Shinault (i.e., 

if   we   were   to   order   the   transfer   of   her   case   to   the   three-judge   panel),   we  would 

effectively be declaring that any sentence of forty-five years or more was "manifestly 

unjust," given the circumstances of her case. 

                 We can perceive no principled distinction between (1) holding that any 

sentence of forty-five years or more is "manifestly unjust" and (2) holding that any 

sentence of forty-five years or more is "clearly mistaken" under the sentencing criteria 

codified in AS 12.55.005. 
                 Indeed, in Harapat v. State,10 this court explained that these two concepts 

are one and the same: 

                         When   a   defendant   seeks   referral   to   the   three-judge 
                 panel    on   the  theory    that  any   sentence     within   the   range 
                 allowed to a single sentencing judge under the presumptive 
                 sentencing      law   would    still   be  manifestly   too   severe,   the 
                 sentencing judge must undertake an analysis of the lower end 
                 of    the   sentencing     range     allowed     by   the   presumptive 
                 sentencing law - either the presumptive term itself (if no 
                 statutory mitigators are proved), or the utmost adjustment that 
                 is   possible    under    AS    12.55.155(a)      based    on    statutory 
                 mitigators.     The   question   to   be   answered   is   whether   this 
                 lowest allowed sentence would still be clearly mistaken under 
                 the sentencing criteria first announced by the supreme court 
                 in State v. Chaney  and now codified in AS 

    9   See generally Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005) ("To be 'plain 

error',   an   error   must   be   so   obvious   that   any   competent   judge  or   attorney   would   have 
recognized it.  If a claim of error is reasonably debatable - if reasonable judges could differ 
on what the law requires - then a claim of plain error fails." (footnote omitted)). 

    10   174 P.3d 249. 

    11  Id. at 254 (footnote omitted). 

                                                      6                                                2308

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                Thus, the question, "If Shinault received a sentence of forty-five years or 

more, would that sentence be manifestly unjust?" is legally equivalent to the question, 

"If Shinault received a sentence of forty-five years or more, would that sentence be 

clearly mistaken under Alaska's sentencing criteria?"              This court has no jurisdiction to 

answer this latter question. 

                A sentence of forty-five years to serve lies within the forty- to sixty-year 

presumptive range of sentences for Shinault's sexual assault conviction.  Alaska Statute 

12.55.120(e) declares, "A sentence within an applicable presumptive range set out in AS 

12.55.125 ... may not be appealed to the court of appeals under [AS 12.55.120] or AS 

22.07.020 on the ground that the sentence is excessive." (Instead, the defendant only has 

the right to petition the Alaska Supreme Court for discretionary review of the sentence.) 

Thus, if Shinault had received this minimum forty-five-year sentence, and if she wished 

to argue that this sentence was excessive, this court would lack jurisdiction to adjudicate 
Shinault's claim.12 

                But Shinault's contention that Judge McKay should have referred her case 

to the three-judge sentencing panel rests on exactly the same underlying claim:                       the 

assertion that even a sentence of forty-five years (the least severe sentence available to 

Judge McKay) was clearly mistaken under the Chaney sentencing criteria.  And because 

the underlying claim is the same, this court's jurisdiction to resolve that claim - or, 

rather, our lack of jurisdiction to resolve that claim - is also the same. 

                We have no jurisdiction to grant relief to Shinault - no authority to declare 

that Shinault's case should be referred to the three-judge panel on the ground that even 

a   sentence   of   forty-five   years   to   serve   was   clearly   mistaken. We   likewise   have   no 

    12  See AS 22.07.020(b), which declares that this court has jurisdiction to hear appeals 

of felony sentences that exceed two years to serve "except as limited by AS 12.55.120." 

                                                    7                                                 2308 

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authority to declare that such a sentence was not clearly mistaken (and that Judge McKay 

therefore committed no error when he failed to refer Shinault's case to the three-judge 


              Because this court lacks jurisdiction to resolve this issue, we conclude that 

Shinault's only avenue for seeking relief is to petition the Alaska Supreme Court to 

exercise its power of discretionary sentence review. 


              Accordingly, we REFER the appellant's excessive sentence claim to the 

Alaska Supreme Court pursuant to Alaska Appellate Rule 215(k).          We AFFIRM the 

remaining aspects of the superior court's judgment and sentence. 

                                             8                                        2308
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