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Smith v. State (7/1/2011) ap-2318

Smith v. State (7/1/2011) ap-2318

        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: 

                              303 K Street, Anchorage, Alaska  99501
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                                                            Court of Appeals No. A-10512 
                                Appellant,                Trial Court No. 3AN-07-12389 Cr 

                                                                    O   P  I  N  I  O  N 

                                Appellee.                     No. 2318    -    July 1, 2011 

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

                Appearances:     Leslie Dickson, Assistant Public Advocate, and 
                Rachel Levitt, Public Advocate, Anchorage, for the Appellant. 
                Eric   A.  Ringsmuth,     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, 

                MANNHEIMER, Judge. 

                Keen Smith appeals the sentence he received for the crime of first-degree 

assault    (reckless   infliction   of  serious   physical    injury   by  means    of   a  dangerous 

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instrument). 1  At his sentencing, Smith asked the sentencing judge to refer his case to the 

three-judge      statewide    sentencing    panel   -    the  panel   of  the  superior    court   that  is 
authorized to depart from the normal rules that govern presumptive sentencing. 2 

                As a basis for sending his case to the three-judge panel, Smith relied on two 

proposed non-statutory mitigators - i.e., two proposed mitigating factors that are not 

listed in AS 12.55.155(d).        First, Smith argued that the superior court should find his 

offense   to   be   mitigated   by   the   non-statutory   mitigating   factor   that   this   Court   first 

recognized in Smith v. State, 711 P.2d 561, 571-72 (Alaska App. 1985) - the mitigating 

factor   of   extraordinary   potential   for   rehabilitation.    Second,   Smith   argued   that   the 

superior court should recognize a new non-statutory mitigator - a mitigator that Smith 

called "developmental immaturity". This proposed mitigator would apply to adolescent 

defendants whose criminal behavior was attributable to the fact that adolescents' brains 

are not fully developed, and that they therefore lack the degree of judgement and impulse 

control that a typical adult would have. 

                In our first decision in this case, Smith v. State, 229 P.3d 221 (Alaska App. 

2010), we remanded Smith's case to the superior court for reconsideration of these two 

proposed non-statutory mitigators.          The superior court again rejected both of Smith's 

proposed mitigators. The superior court concluded that Smith failed to prove that he had 

extraordinary prospects for rehabilitation, and the superior court rejected Smith's other 

proposed mitigator, "developmental immaturity", because the court concluded that this 

proposed      mitigator    was   encompassed       within    the  already-recognized       mitigator    of 

extraordinary potential for rehabilitation. 

    1   AS 11.41.200(a)(1). 

    2   See AS 12.55.175. 

                                                  - 2 -                                               2318 

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                For the reasons explained in this opinion, we affirm the superior court's 

decision with respect to both of the proposed mitigators. 

        Underlying facts 

                 Smith   entered   a   negotiated   plea   in   this   case,   and   the   plea   agreement 

included   a   provision   that   the   case   would   be   submitted   to   the   sentencing   court   on 

stipulated facts.   However, the parties' stipulation did not specify a particular version of 

the facts as being true. Rather, the parties merely stipulated that various participants and 

witnesses had given the police different (and sometimes irreconcilable) versions of the 

incident when they were interviewed during the investigation of this case. Under the 

terms of the parties' stipulation, these various accounts of the incident were submitted 

to the superior court, and the superior court was then left to sort out what had really 


                Here   is   a   summary   of   the   information   presented   to   the   superior   court 

pursuant to the parties' stipulation: 

                At approximately 12:30 a.m. on the night of November 1-2, 2007, Byron 

Rogers and Allen Odomin (two roommates who worked together at a restaurant) left 

work and stopped at Party Time Liquor to purchase alcoholic beverages.                      At the liquor 

store,   they   ran  into   Jonathan    Odomin      (Allen's   brother)   and   Jonathan's     girlfriend, 

Amanda Walker.  Amanda Walker is the sister of Rigoberto Walker, the shooting victim 

in this case. 

                After running into each other at the liquor store, the four youths all went 

back to the apartment complex where they lived. (Rogers and Allen Odomin lived in the 

same complex as Jonathan Odomin and Amanda, but on a different floor.)                        Rigoberto 

                                                  - 3 -                                              2318

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Walker was, at this time, on the run from the juvenile justice system; he had taken refuge 

with his sister Amanda and her boyfriend Jonathan. 

                About   an   hour   later,   Jonathan   Odomin   knocked   on   the   window   of   the 

apartment shared by Byron Rogers and Allen Odomin.                  Jonathan was bleeding from a 

split lip, and he reported that he had just been beaten up in the front yard of the apartment 

complex.      Jonathan   then   ran upstairs to   his own   apartment, to   tell Amanda   and   her 

brother Rigoberto what had happened. 

                A little later, Jonathan Odomin, his brother Allen, and Byron Rogers saw 

Rigoberto Walker standing across the street from the apartment complex, arguing with 

three juvenile males.       These three juvenile males were later identified as J.T., age 14, 

Daniel Byrd, age 16, and the defendant in this case, Keen Smith, age 16. 

                Jonathan mistakenly thought that the three juveniles who were arguing with 

Rigoberto were the same people who beat him up.                (Subsequent investigation revealed 

that Jonathan Odomin was beaten up by three different (and still unidentified) young 

men who just happened to be passing by the apartment complex.)  In other words, Keen 

Smith   and   his   two   companions   had   not   committed   this   earlier   crime,   but   Rigoberto 

Walker confronted them under the mistaken belief that they were the ones who beat up 

his sister's boyfriend, Jonathan. 

                Smith and his companions denied (i.e., they truthfully denied) that they 

were the ones who beat up Jonathan, but   when Jonathan insisted that they were his 

attackers, Walker backed him up. Smith and his companions started to walk away, down 

an alley, but Walker (who apparently was intoxicated) followed the three young men and 

challenged them to fight. Within a few seconds, Smith pulled out a revolver and handed 

it to Daniel Byrd. 

                According to Byrd and J.T. (the third companion), Smith encouraged Byrd 

to shoot Walker.  Smith, however, repeatedly denied this when he was later interviewed. 

                                                 - 4 -                                             2318

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According to Smith, he handed the gun to Byrd because thought he was about to engage 

in   a   fist   fight   with   Walker,   and   he   did   not   wish   to   be   carrying   a   loaded   gun   in   his 

waistband when he did so.  Smith declared that he was taken by surprise when Byrd used 

the gun to shoot Walker. 

                In any event, whether or not Smith encouraged Byrd to shoot, it is clear that 

Walker himself encouraged Byrd to shoot.   In Walker's later statement to the police, he 

acknowledged that he told Byrd, "You can fire right now."                 And J.T. confirmed that 

Walker told them, "Shoot me." 

                Moreover, according to the statements given by Byrd and Smith, Walker 

was actually taunting them to shoot.  Smith told the police that Walker was saying, "I'll 

take all three of you at the same time.         You['re] all some bitches.        You['re] all some 

bitches.   Shoot me!      Shoot me!"      And Byrd told the police that Walker said to him, 

"Shoot me, shoot me!  Hurry up, nigger.  Don't be a bitch."  (Walker, Byrd, Smith, and 

J.T. all are black.) 

                With Walker taunting Byrd to shoot, Byrd closed his eyes and pulled the 

trigger; Walker was hit. Smith, Byrd, and J.T. then ran away and hid the gun.  Later, J.T. 

led the police to the place where they had thrown away the gun, and the police retrieved 

the weapon. 

                Both Smith and Byrd (who, as explained above, were 16 years old at the 

time) were indicted as adults for attempted murder.            They were also indicted for first- 

degree assault (because Walker was seriously wounded), and for tampering with physical 

evidence (for throwing the revolver away). 

                Approximately six months later, Smith reached a plea agreement with the 

State.   Under the terms of this agreement, Smith pleaded guilty (as an adult) to first- 

degree assault, with open sentencing within the applicable presumptive sentencing rules, 

and the other criminal charges were dismissed. 

                                                 - 5 -                                            2318

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

                Superior Court Judge Patrick J. McKay ruled that Smith's sentencing was 

governed   by   AS   12.55.125(c)(2),   the   provision   that   governs   first   felony   offenders 

convicted of class A felonies when the defendant either used a dangerous instrument or 

inflicted   serious   physical   injury   on   the   victim.   Under   this   statute,   Smith   faced   a 

presumptive range of 7 to 11 years' imprisonment. 

                Judge McKay rejected the State's proposed aggravators and also rejected 

Smith's proposed mitigators.  The judge then imposed a sentence toward the lower end 

of the presumptive range:        10 years with 3 years suspended (i.e., 7 years to serve). 

        The   proposed      non-statutory   mitigator   of   "extraordinary   potential   for 

                Because Smith argued that two non-statutory mitigators applied to his case, 

and because the statewide three-judge sentencing   panel is the only sentencing court 

authorized to consider non-statutory mitigators, see AS 12.55.165 - 175, Smith asked 

his sentencing judge to refer his case to the three-judge panel. 

                The     first  of   Smith's  two   non-statutory     mitigators    was   "extraordinary 
potential for rehabilitation". 3      In support of this proposed mitigator, Smith's attorney 

presented substantial evidence that Smith's criminal behavior arose from family stresses, 

from peer-group pressure, and from general teenage immaturity.                  (As we noted earlier, 

Smith was 16 years old at the time of this offense.) 

                The   chief   defense   witness   on   this   issue   was   Dr.   Nan   Truitt,   a   clinical 

psychologist who had worked both at McLaughlin Youth Center and at the adolescent 

unit at Alaska Psychiatric Institute.        Truitt described many factors that pointed toward 

    3   This mitigator was recognized and defined by this Court in a series of cases beginning 

with Christopher Smith v. State, 711 P.2d 561 (Alaska App. 1985). 

                                                  - 6 -                                               2318 

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

Smith's successful rehabilitation, and she concluded that Smith had much better chances 

than the majority of the children whom she had evaluated in her years working with 

troubled   youths.      She   told   the   court   that   she   believed,   to   "a   reasonable   degree   of 

psychological and scientific certainty", that Smith had an extraordinary potential for 

rehabilitation, and that he was not likely to re-offend. 

                 Truitt   acknowledged        that  she   had   diagnosed     Smith    as  being    on   the 

borderline between "oppositional defiant disorder" and a full-blown "conduct disorder". 

("Conduct   disorder   is   the   worse   category:      according   to   the   DSM-IV,   the   essential 

feature of a diagnosis of "conduct disorder" is "a repetitive and persistent pattern of 

behavior in which the basic rights of others or major age-appropriate societal norms or 

rules are violated".) 

                 However, Truitt pointed   out that, even if Smith should be classified as 

having   a   "conduct   disorder",   his   condition   was   "adolescent   onset"   -   which   was   a 

hopeful sign.  According to Truitt, a majority of adolescents with this diagnosis "go on 

[to] life as a pretty typical adult". 

                 We do not wish to suggest that Truitt's testimony came in unchallenged. 

The prosecutor conducted a detailed and probing cross-examination of Truitt, pointing 

out that there were other ways to interpret Smith's conduct, and other ways to interpret 

Smith's performance on the psychological tests.               The prosecutor also pointed out that 

Smith might have lied to Truitt when he described the shooting and his reaction to it. 

However, the State presented no competing testimony concerning Smith's potential for 


                 A   defendant   who   asserts   the   non-statutory   mitigator   of   "extraordinary 

potential for rehabilitation" must prove by clear and convincing evidence that they "can 

adequately   be      treated   in   the   community   and   need   not   be   incarcerated   for   the   full 

presumptive term in order to prevent future criminal activity."               Beltz v. State, 980 P.2d 

                                                   - 7 -                                              2318

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

474, 481 (Alaska App. 1999), quoting Lepley v. State, 807 P.2d 1095, 1100 (Alaska App. 

 1991).   As we explained in Beltz : 

                Such a prediction of successful treatment and non-recidivism 
                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 
                because     the   defendant's    criminal    conduct    resulted   from 
                unusual environmental stresses unlikely ever to recur. 

980 P.2d at 481.      These, then, were the legal considerations that Judge McKay was to 

weigh or resolve when he ruled on Smith's proposed non-statutory mitigator. 

                In   his   decision   on   remand,   Judge   McKay   acknowledged   the   scientific 

research on brain development - and, more specifically, the research indicating that 

teenagers     have    not  achieved    their   full  adult  brain   development.      Judge     McKay 

"accept[ed] the science on adolescent brain development presented by Smith", and the 

judge indicated that, if Smith's current crime had been an "isolated act", this scientific 

evidence might have led him to conclude that Smith had extraordinary prospects for 


                However, Judge McKay concluded that Smith's case did not involve an 

isolated   instance    of   anti-social   behavior.   As   the   judge   noted,   in   the   five   months 

preceding the shooting in this case, Smith engaged in two other, separate incidents of 

law-breaking.  In one instance, Smith and some of his friends stole speakers out of a car. 

Three months later, Smith and his friends threw rocks at moving vehicles (and hit a van 

full of people in the passenger-side window). 

                Judge McKay further noted that Smith had dropped out of school, he stayed 

at his father's home only "occasionally", he did not have a job, and he had recently been 

                                                 - 8 -                                             2318

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

fined   for   operating   a   vehicle   without   possessing   a   driver's   license   or   registration. 

Following Smith's arrest for this shooting, while he was in jail, Smith was "written up" 

for three infractions:       fighting, disorderly conduct, and possession of contraband. 

                  Judge McKay   concluded that, although Smith was "far from being the 

worst   juvenile   offender   to   appear   [before   him]",   Smith   was   nevertheless   not   a   law- 

abiding teenager who "succumbed to adolescent impulsiveness" on an isolated occasion. 

Rather, Judge McKay found that Smith's history "showed a pattern of misbehavior". 

                  Judge McKay acknowledged that, at Smith's original sentencing hearing, 

he (the judge) had declared that Smith had "a very good chance of rehabilitation".  He 

stated that he still thought this was true - but he explained that Smith's "very good" 

chance      of   rehabilitation      was    not   the   same     as   the   "extraordinary        potential    for 

rehabilitation" required to prove the non-statutory mitigator: 

                           The Court:       [This] Court did not, and does not, find 
                  that     Smith       has    an     "extraordinary"         [potential       for 
                  rehabilitation].     Under the Beltz standard, this Court is not 
                  reasonably satisfied that it knows why this particular crime 
                  was   committed.        ...   [J]uvenile   [impulsiveness]   and   peer 
                  pressure      could     have    played     a   significant     role    in   the 
                  commission of the crime ... , but Smith's history prior to the 
                  shooting[,] and his conduct in jail while awaiting disposition 
                  of [this] case[,] indicate that this was not a one-time incident. 
                           .  .  . 

                          The     second     prong     of   the Beltz     test  -    "that    the 
                  conditions leading to the criminal act will not recur" - also 
                  [is]   not   satisfied   in  this   case.   [Smith]   had   two   criminal 
                  incidents in the five months leading up to this shooting and 
                  [he] racked up three violations while incarcerated.                  He was 
                  apparently unresponsive to his informal [juvenile] probation. 
                  [This] Court is far from reasonably satisfied that [Smith's] 
                  "criminal      conduct      resulted    from    unusual      environmental 

                                                      - 9 -                                                 2318

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                stresses unlikely ever to recur", let alone convinced by clear 
                and convincing evidence of this unlikelihood. 

                In his brief to this Court, Smith asserts that Judge McKay's findings are 

both unsupported and internally inconsistent. 

                Specifically, Smith notes that Judge McKay declared that he accepted the 

testimony     concerning     adolescent   brain    development   -       in  particular,   the  fact   that 

adolescents do not have a fully developed ability to control their impulses, and the fact 

that a great majority of adolescents (approximately four out of five) who engage in 

unlawful behavior as teenagers do not continue to break the law when they become 


                It is true that Judge McKay stated that he accepted the scientific evidence 

concerning adolescent brain development.              However, as we have described, the judge 

also stated that he believed Smith's criminal behavior in this case was attributable, not 

merely   to   adolescent   impulsiveness,   but   to   a   more   persistent   pattern   of   antisocial 

behavior.    The judge based this conclusion on Smith's delinquent acts (apart from the 

shooting in this case) and Smith's inability to obey correctional facility rules following 

his arrest in this case. 

                In   his   brief   to   this   Court,   Smith   argues   that   these   delinquent   acts   and 

correctional facility infractions are "precisely the type of low-level adolescent conduct 

[that] the science on adolescent brain development explains".                 Thus, Smith continues, 

Judge McKay could not have been uncertain as to why Smith committed the assault in 

this case.   The assault must have been due to Smith's lack of adult brain development. 

According to Smith, the shooting was "unforeseeable", and "there is simply no reason 

to assume that incarceration is necessary to prevent Smith from re-offending". 

                But Smith's argument is based on viewing the evidence in the light most 

favorable to Smith, not the light most favorable to upholding Judge McKay's findings. 

                                                 -  10 -                                            2318

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

Judge McKay could reasonably conclude that Smith's string of antisocial behavior did 

not stem solely from the fact that Smith was an impulsive teenager - that there was 

something else at work in his personality.   And, as Judge McKay remarked, the fact that 

eighty percent of delinquent teenagers are eventually able to conform their behavior to 

the requirements of the law means that twenty percent do not develop this ability. 

                 Moreover,       to  the   extent   that   Smith    suggests    that   the  shooting     was 

completely "unforeseeable", and that he bears little fault for the shooting, this argument 

is foreclosed by Smith's decision to plead no contest to first-degree assault.  This Court 

held in Ashenfelter v. State, 988 P.2d 120, 123 (Alaska App. 1999), that after a defendant 

pleads guilty or no contest to a criminal charge, they are not entitled to deny their factual 

guilt of the charge.      Even though a defendant who pleads no contest (like Smith) need 

not concede the factual truth of the State's allegations, the legal effect of the defendant's 

no contest plea is that the sentencing court is entitled to treat each element of the offense 

as proved (despite the defendant's protestations of factual innocence). Scott v. State, 928 

P.2d 1234, 1238 (Alaska App. 1996). 

                 Smith      pleaded     no    contest    to   first-degree     assault    as    defined     in 

AS   11.41.200(a)(1).         In   other   words,   he   agreed   that   the   superior   court   could   (for 

sentencing purposes) conclusively presume that Smith inflicted serious physical injury 

on another person by means of a dangerous instrument, and that Smith acted at least 

recklessly with respect to the possibility that his actions would cause this result. 

                 In this context, "recklessly" means that Smith was aware of, and that he 

consciously disregarded, a substantial and unjustifiable possibility that his act of handing 

the   loaded   handgun   to   his   companion,   Byrd,   would   lead   to   the   infliction   of   serious 
physical injury. 4    Thus, even though Smith may legitimately argue that he did not intend 

    4   See AS 11.81.900(a)(3) (defining "recklessly"). 

                                                   -  11 -                                               2318 

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

for another person to suffer serious physical injury, Smith is prohibited from arguing that 

the shooting and the resulting infliction of serious physical injury were "unforeseeable". 

                For these reasons, we affirm Judge McKay's decision that Smith failed to 

prove the non-statutory mitigator of extraordinary potential for rehabilitation. 

        The proposed non-statutory mitigator of "developmental immaturity" 

                Smith also proposed a new non-statutory mitigating factor which he called 

"developmental        immaturity".      In   support    of  this  new   mitigator,    Smith    presented 

testimony pertaining to scientific findings that human brain development is not complete 

until a person reaches their early to mid-twenties - and that adolescents lack the degree 

of judgement and impulse control that a typical adult would have. 

                In the portion of his decision addressing this proposed mitigator, Judge 

McKay declared that "[t]he science regarding developmental maturity is clear", and he 

accepted   the   proposition   that   "Smith,   like   most   16-year-olds,   was   developmentally 

immature at the time of the shooting". 

                Moreover, Judge McKay accepted the proposition that Smith's crime "was 

particularly influenced by impulsive behavior and peer pressure, both classic symptoms 

of developmental immaturity".           He concluded that the shooting had been prompted by 

the   fact   that   Smith   and   his   companions   "needed   to   prove   their   toughness",   and   by 

"tension and mounting peer pressure". 

                Judge McKay also accepted the proposition that Smith and his companions 

"did not set out to commit any crimes that evening", and that the shooting was "a classic 

example of impulsive behavior", with "little time for rational thought or introspection". 

                                                 -  12 -                                            2318

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

                 However, Judge McKay declared that he considered all of this information 

when he evaluated Smith's other proposed mitigator - i.e., when he decided whether 

Smith had an extraordinary potential for rehabilitation. Judge McKay concluded that the 

information      about    human     brain  development       was   "simply    part   and   parcel   of  this 

[already] established mitigator." 

                 The judge acknowledged that his findings - that Smith acted impulsively, 

and that his conduct was shaped by peer pressure - seemingly supported a finding that 

Smith had an extraordinary potential for rehabilitation.              However, the judge explained 

that   Smith's   developmental   immaturity   was   "simply   one   factor   in   evaluating   [his] 

potential for rehabilitation": 

                         The Court:      An offender's youthful age   has always 
                 been a factor that a sentencing court takes into consideration. 
                Neuroscience has now [given] us [a further justification for] 
                 this   [practice].  Smith,   though,   present[s]   a   pattern   of   bad 
                 decisions   ...   .  [Developmental   immaturity]   is   certainly   a 
                 factor in Smith's sentencing, but that factor is outweighed by 
                 the totality of the circumstances both before and after Smith 
                pulled a revolver out of his waistband ... . 

                 In   his   brief   to   this   Court,   Smith   argues   that   Judge   McKay   mistakenly 

treated "developmental immaturity" as merely a component of the already recognized 

mitigating factor of "extraordinary potential for rehabilitation".               Smith argues that an 

adolescent's developmental immaturity must be viewed as an independent mitigating 

factor, apart from the adolescent's prospects for rehabilitation. 

                 Smith   places   primary   reliance   on      the   United   States   Supreme   Court's 

decisions in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and 

Graham v. Florida, __ U.S. __, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).  In Simmons, 

the Supreme Court   held that the cruel and unusual punishment clause of the Eighth 

                                                  -  13 -                                             2318

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

Amendment prohibits the states from imposing the death penalty on juveniles.  543 U.S. 

at 568, 125 S.Ct. at 1194.        In Graham, the Supreme Court held that this clause of the 

Eighth Amendment prohibits the states from sentencing juveniles to life imprisonment 

without possibility of parole for non-homicide offenses.              130 S.Ct. at 2030. 

                The decisions in Simmons and  Graham are based on the conclusion that 

juveniles (as a group) are "less deserving of the most severe punishments" because, 

compared to adults, they exhibit a "lack of maturity and an underdeveloped sense of 

responsibility", because they are "more vulnerable or susceptible to negative influences 

and ... peer pressure", and because their characters are "not as well formed".                 Graham, 

 130 S.Ct. at 2026, citing Simmons, 543 U.S. at 569-570, 125 S.Ct. at 1195. 

                 Smith   argues   that,   because   of   these   differences   between   juveniles   and 

adults, because juveniles "cannot conceptualize long-term consequences" and because 

their   conduct   is   characterized   by   a   "corresponding   impulsivity",   this   Court   should 

recognize a special "developmental immaturity" mitigating factor that would apply to 

offenders in their teens and early twenties - a mitigating factor distinct from the already 

recognized mitigator for extraordinary prospects for rehabilitation. 

                We reject this proposed mitigating factor for two reasons. 

                First, although the decisions in Simmons and Graham are premised on the 

recognition   that   juveniles   are   less   mature   and   hence   less   blameworthy   than   adults, 

Simmons and Graham impose fairly narrow restrictions on a state's sentencing authority 

over juvenile offenders.        Simmons holds that the Constitution forbids the states from 

sentencing juveniles to death, and Graham holds that the Constitution forbids the states 

from sentencing juveniles to life imprisonment without possibility of parole unless the 

juvenile has been convicted of a homicide.              But the Supreme Court said nothing to 

suggest   that   the   Constitution   might   call   for   across-the-board   mitigation   of   all   other 

                                                 -  14 -                                            2318

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

criminal penalties when the offender is a juvenile.             Nor does the Court's reasoning in 

Simmons and Graham lead to such a conclusion. 

                The constitutional evil that the Supreme Court identified in Simmons and 

Graham is the imposition of a sentence that "alters the offender's life by a forfeiture that 

is irrevocable" - a penalty that permanently removes a juvenile offender from society, 

and that can never be modified (absent executive clemency) even if the juvenile offender 

later matures and demonstrates the capacity to pursue a productive and law-abiding life. 

 Graham, 130 S.Ct. at 2027.  However, Simmons and Graham do not purport to limit the 

imposition of lesser penalties on juvenile offenders.  In fact, the Graham decision holds 

that it is constitutionally permissible to impose a life sentence on a juvenile (even for a 

non-homicide offense), and to potentially make the juvenile spend their remaining life 

in prison, so long as there is an institutionalized legal mechanism available to modify the 

sentence if the juvenile demonstrates their rehabilitation: 

                The Eighth Amendment does not foreclose the possibility that 
                persons      convicted    of   non[-]homicide      crimes    committed 
                before adulthood will remain behind bars for life.               It does 
                forbid   States   from   making   the   judgment   at   the   outset   that 
                those offenders never will be fit to reenter society. 

                For   these   reasons,   we   conclude   that   the   holdings   and   the   reasoning   of 

Simmons and  Graham do not support an across-the-board mitigation of sentences for 

juvenile offenders who are prosecuted within the adult justice system. 

                 Second, Smith's proposal that this Court recognize a mitigating factor for 

"developmental immaturity" appears to contravene the policy underlying the legislature's 

creation of aggravating and mitigating factors. 

                As this Court explained in Knight v. State, 855 P.2d 1347, 1349 (Alaska 

App. 1993), the presumptive sentencing range for any given class of case "represents the 

                                                 -  15 -                                            2318

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

appropriate sentence for typical cases in that class, a relatively broad category into which 

most cases will fall".  Aggravating and mitigating factors "define the peripheries" of this 

broad     category    of  "typical"   cases;   these   factors  identify   the   "relatively   narrow 

circumstances that tend to make a given case atypical and place it outside the relatively 

broad presumptive middle ground."  Ibid. (quoted with approval by the Alaska Supreme 

Court in State v. Parker, 147 P.3d 690, 695 (Alaska 2006)). 

                By enacting AS 12.55.165 and 175, the legislature effectively gave the 

judicial   branch    (in  particular,  the  three-judge    statewide    sentencing    panel   and  the 

appellate   courts)   the   authority   to   create   "non-statutory"   aggravating   and   mitigating 

factors - i.e., sentencing factors that expand the lists codified in AS 12.55.155(c) - (d). 

For    example,   in Smith     v.   State,   this  Court   adopted  the  non-statutory   mitigator   of 

extraordinary potential for rehabilitation.       711 P.2d at 571-72. 

                But this judicial authority to create non-statutory aggravating and mitigating 

factors must be exercised in conformity with the legislature's sentencing policy choices. 

As we explained in Dancer v. State, the judicial power to establish new aggravating and 

mitigating factors is a legislatively sanctioned instance of the court's common-law power 

to develop the law.      715 P.2d 1174, 1179 n. 3 (Alaska App. 1986).             And when courts 

exercise this common-law power to declare the law, "the guiding principle is that they 

should not exercise this authority in disregard of existing constitutional and statutory 

provisions."  Dayton v. State, 120 P.3d 1073, 1080 (Alaska App. 2005), quoting Hosier 

v. State, 957 P.2d 1360, 1364-65 (Alaska App. 1998). 

                In Smith, we concluded that it was proper for us to create a non-statutory 

mitigating     factor  based   on   a  defendant's    extraordinary    potential   for  rehabilitation 

because this factor was "integrally related to the  Chaney sentencing criteria" (i.e., the 

sentencing criteria codified in AS 12.55.005), and because, if a sentencing court ignored 

a defendant's demonstrated uncommon potential for rehabilitation, there would be "a 

                                                -  16 -                                          2318

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tremendous        risk  ...  that  [the   defendant's]     sentence     [would]     be   imposed     without 

appropriate regard for the [sentencing] goal of rehabilitation."  711 P.2d at 570-71.  For 

these reasons, we concluded that the legislature did not intend "to preclude realistic, 

individualized consideration of the [defendant's] need and potential for rehabilitation in 

cases involving first felony offenders".  Id. at 571. 

                 On the other hand, in Totemoff v. State, 739 P.2d 769 (Alaska App. 1987), 

we rejected a proposed non-statutory mitigating factor because we concluded that the 

proposed mitigator was inconsistent with legislative intent. 

                 The   proposed   mitigating   factor   in      Totemoff   was   that   a   second   felony 

offender's prior conviction was for a felony of lesser seriousness (i.e., a lesser class of 

felony). When the Alaska Legislature originally enacted the presumptive sentencing law, 

this factor was codified as a statutory mitigator: see former AS 12.55.155(d)(8).  But the 

legislature later repealed this mitigator, on the ground that it made little sense to "reward" 

offenders whose criminal behavior was getting progressively worse.  Totemoff, 739 P.2d 

at   776   n.   5. Given      the   legislature's   decision    to   repeal   this   mitigating   factor,   we 

concluded that the courts could not be permitted to undo what the legislature had done, 

by resurrecting the repealed statutory mitigating factor as a non-statutory factor: 

                          [A] court should not [adopt] a nonstatutory mitigating 
                 factor ... [if] the legislature specifically rejected that factor for 
                 inclusion   in   AS   12.55.155(d).       Where   the   legislature   has 
                 expressly addressed a consideration, such as the relationship 
                 between a defendant's past conduct and his present offense, 
                 and   [has]   imposed   limitations   on   the   [sentencing]   court's 
                 power      to  consider     that  relationship     in  mitigation     of   [a 
                 defendant's]       sentence,    the   [sentencing]     court   should    not 
                 [adopt     a  non-statutory]      mitigating     factor   [that   does   not 
                 comply]   with   [those]   limitations;   to   do   so   is   to   [adopt]   a 
                 common law development inconsistent with legislation. 

                                                   -  17 -                                               2318

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

Totemoff, 739 P.2d at 776-77. 

               The unsuitability of a proposed non-statutory mitigator may stem from the 

fact that the legislature debated that mitigating factor and refused to enact it, or (as in 

Totemoff) because the legislature enacted that mitigating factor and then later repealed 

it.  But sometimes a proposed non-statutory mitigator will be unsuitable because, if 

adopted, it would conflict with sentencing policies that the legislature has expressed in 

other ways. 

               An example of this latter situation was presented in Johnson v. State, 762 

P.2d   493   (Alaska   App.   1988).   Johnson   did   not   involve   a   proposed   non-statutory 

mitigator, but rather a proposed interpretation of one of the statutory mitigators codified 

in AS 12.55.155(d). 

               The defendant inJohnson appealed the sentence he received for first-degree 
sexual abuse of a ten-year-old child. 5      One of Johnson's claims on appeal was that the 

sentencing      judge    should     have    found    his   offense     to  be    mitigated    under 

AS   12.55.155(d)(13)   -   now   renumbered   as   subsection   155(d)(12).        This   mitigator 

applies to cases where "the harm caused by [the defendant's] conduct [is consistently] 
minor and inconsistent with the imposition of a substantial period of imprisonment". 6 

               We held that the superior court properly rejected this proposed mitigating 
factor. 7  One of our reasons for reaching this conclusion was that the legislature had 

enacted fairly severe sentences for first-degree sexual abuse of a minor.             Because the 

legislature "clearly intended a substantial period of imprisonment for those convicted of 

sexual abuse of a minor", we held that, even in mitigated cases, it would violate this 

    5   762 P.2d at 494-95. 

    6   Id. at 495-96. 

    7   Id. at 496. 

                                               - 18 -                                           2318 

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

legislative intent if a sentencing court were to treat the sexual abuse of a ten-year-old 

child as a "minor" offense that was "inconsistent with the imposition of a substantial 

period of imprisonment".         762 P.2d at 496. 

                 We believe that this same reasoning requires us to reject Smith's proposed 

mitigating factor based on the immature brain development of teenagers and young 

adults in their early to mid-twenties. 

                 Under Alaska law before 1994, any person under the age of 18 who was 

charged with a felony was prosecuted and (if found guilty) punished under the juvenile 

delinquency laws contained in Title 47, chapter 10 of the Alaska Statutes.   But in 1994, 

the   Alaska   Legislature   amended   the   coverage   of   the   juvenile   delinquency   laws   by 

enacting former AS 47.10.010(e), a statute that is now   codified as AS 47.12.030(a). 

Under this statute, 16- and 17-year-olds who are charged with certain serious felonies 

(such as first-degree assault, the charge against Smith in this case) are prosecuted and, 
if found guilty, punished as adults. 8 

    8   AS 47.12.030(a) provides: 

        When a minor who was at least 16 years of age at the time of the offense is charged 
    by complaint, information, or indictment with an offense specified in this subsection, this 
    chapter and the Alaska Delinquency Rules do not apply to [that] offense ... or to any 
    additional offenses joinable to it under the applicable rules of ... criminal procedure.  The 
    minor shall be charged, held, released on bail, prosecuted, sentenced, and incarcerated 
    in the same manner as an adult.          If the minor is convicted of an offense other than an 
    offense specified in this subsection, the minor may attempt to prove, by a preponderance 
    of the evidence, that the minor is amenable to treatment under this chapter.               If the court 
    finds that the minor is amenable to treatment under this chapter, the minor shall be treated 
    as   though   the   charges   had   been   heard   under   this   chapter,   and   the   court   shall   order 
    disposition of the charges of which the minor is convicted under AS 47.12.120(b).                   The 
    provisions of this subsection apply when the minor is charged by complaint, information, 
    or indictment with an offense 

                                                   -  19 -                                             2318

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

                 This change in the law demonstrates a major shift in legislative policy 

toward older juvenile offenders who commit serious crimes.                     Instead of treating these 

offenders   leniently   on   account   of   their   youth,   the   legislature   has   decided   that   these 

offenders should be prosecuted and punished under the same rules that apply to adults. 

                 If   this   Court   were   to   recognize   "developmental   immaturity"   as   a   non- 

statutory mitigator that applies to all of these offenders, our action would run contrary 

to   this   legislative   policy.  Our   recognition   of   this   proposed   non-statutory   mitigator 

would, in effect, create a presumption that these older teenagers (indeed, all offenders 

younger than their mid-twenties) should be treated   more leniently, and our decision 

would   require   the   superior   court   to   transfer   the   sentencing   of   all   of   these   younger 

offenders to the statewide three-judge sentencing panel - since the three-judge panel 

    8    (...continued) 

             (1) that is an unclassified felony or a class A felony and the felony is a crime 
        against a person; 

             (2) of arson in the first degree; 

             (3) that is a class B felony and the felony is a crime against a person in which the 
        minor is alleged to have used a deadly weapon in the commission of the offense and 
        the minor was previously adjudicated as a delinquent or convicted as an adult, in this 
        or another jurisdiction, as a result of an offense that involved use of a deadly weapon 
        in the commission of a crime against a person or an offense in another jurisdiction 
        having elements substantially identical to those of a crime against a person, and the 
        previous offense was punishable as a felony; in this paragraph, "deadly weapon" has 
        the meaning given in AS 11.81.900(b); or 

             (4) that is misconduct involving weapons in the first degree under 
                 (A)   AS 11.61.190(a)(1); or 
                 (B) AS 11.61.190(a)(2) when the firearm was discharged under circumstances 
             manifesting substantial and unjustifiable risk of physical injury to a person. 

                                                   - 20 -                                               2318

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

is   the   only  sentencing   court   authorized   to   consider   non-statutory        aggravating   and 

mitigating factors. 

                 In his supplemental brief, Smith argues that our recognition of his proposed 

mitigating factor would not have these sweeping consequences.   He asserts that "not ... 

every youthful offender would automatically be entitled to this [proposed] mitigator". 

(Emphasis       in  the  original)    Rather,   Smith    argues,    "[t]he  onus    [would    be]   on   the 

[individual] defendant to prove this mitigator" by presenting "evidence [relating] to the 

offender, his behavior, and the offense". 

                 But after making these conclusory assertions that individualized proof will 

be required, Smith fails to explain what kind of individualized proof he is talking about. 

We are at a loss to know what Smith is referring to.                  His own offer of proof in the 

superior court was not an individualized offer of proof.  Smith did not present evidence 

that he personally had immature brain development.   Rather, Smith presented evidence 

that   essentially  all   young   adults   (i.e.,   all   persons   who   are   younger   than   their   mid- 

twenties) do not yet have fully developed brains, and we therefore should not expect 

them to have the same level of judgement and impulse control as fully mature adults. 

                 If Smith is asserting that individual defendants would still have to prove 

that this neurological immaturity had a substantial effect on their decision or willingness 

to engage in criminal behavior, then we believe the answer to this assertion is the one 

given     by  Judge    McKay:        a  youthful    offender's     neurological     immaturity     can   be 

considered (on an individualized basis) under the rubric of the existing non-statutory 

mitigator of extraordinary potential for rehabilitation. 

                 For    these    reasons,     we    conclude      that   we    should     not   recognize 

"developmental immaturity" as a non-statutory mitigator.                  We are not saying that we 

distrust the scientific evidence that Smith presented to the superior court.                  Rather, we 

conclude that, absent a convincing argument that the penalties enacted by the legislature 

                                                  - 21 -                                              2318

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

contravene a provision of the constitution, the legislature remains the entity that should 

decide whether this scientific research calls for a modification of the rules of sentencing, 

or for changes in the penalty ranges for crimes committed by youthful offenders. 


              The judgement of the superior court is AFFIRMED. 

                                           - 22 -                                       2318
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