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Knipe v. State (7/19/2013) ap-2394

Knipe v. State (7/19/2013) ap-2394


        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

                                         Fax:   (907) 264-0878

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MICHAEL B. KNIPE,                                ) 

                                                 )         Court of Appeals No. A-10886 

                            Appellant,           )         Trial Court No. 3PA-08-3247 CR 


             v.                                  ) 

                                                 )                    O P I N I O N 

STATE OF ALASKA,                                 ) 


                            Appellee.            )            No. 2394     -   July 19, 2013 


                Appeal from the Superior Court, Third Judicial District, Palmer, 

                Eric A. Smith, Judge. 

                Appearances:  Dan S. Bair, Assistant Public Advocate, Appeals 

                & Statewide Defense Section, and Richard Allen, Alaska Public 

                Advocate, Anchorage, for the Appellant.          Terisia K. Chleborad 

                and Tamara de Lucia, Assistant Attorneys General, Office of 

                Special Prosecutions and Appeals, Anchorage, and Michael C. 

                Geraghty, Attorney General, Juneau, for the Appellee. 

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

                Supreme Court Justice.* 

                Judge ALLARD. 

    *   Sitting    by  assignment     made    pursuant   to  article  IV,  section   16   of  the  Alaska 

Constitution and Administrative Rule 24(d). 

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

                Michael B. Knipe pled guilty to one count of sexual abuse of a minor in the 

first   degree   for   sexually   penetrating   his   three-year-old   cousin.1  A   first-time   felony 

offender, Knipe faced a presumptive range of 25 to 35 years.                  At sentencing, Knipe 

requested that the superior court refer his case to the statewide three-judge sentencing 

panel on the ground that any term within the presumptive sentence would be manifestly 

unjust as applied to him.        Superior Court Judge Eric A. Smith denied the request and 

sentenced   Knipe   to   30   years   with   5   years   suspended,   25   years   to   serve,   the   lowest 

presumptive term available.         Knipe now appeals.        For the reasons discussed below, we 

conclude that we have jurisdiction to hear Knipe's appeal and further conclude that the 

superior court was not clearly mistaken in refusing to send Knipe's case to the three- 

judge panel. 

                Underlying facts 

                In November 2008, twenty-two-year-old Michael Knipe, who has been 

diagnosed with borderline intellectual functioning, was living with his uncle and his 

uncle's family, which included Knipe's three-year-old cousin C.T.  In the early hours of 

November 10, a family friend staying in the house heard C.T. crying and found her in 

the bathroom with Knipe, whose shirt was off and whose pants were unzipped.  C.T. had 

blood on her pants and shirt.        The police were called and they interviewed Knipe, who 

told them he put his finger in C.T.'s vagina, causing C.T. to bleed profusely. 

                C.T. was transported to the Children's Place where she was interviewed and 

received medical attention. There was a significant laceration to her vaginal area, similar 

to the type of injury that can result from a woman giving birth.                The injury required 

    1   AS 11.41.434(a)(1). 

                                                   2                                                2394 

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

surgical repair, including two layers of sutures. 

                 Knipe was charged with three counts of first-degree sexual abuse of a minor 

for knowingly engaging in sexual penetration with C.T., a victim under thirteen years of 


age.    Knipe subsequently pleaded guilty to one count of first-degree sexual abuse of a 

minor pursuant to a plea agreement.  The State agreed not to file any aggravating factors 

and agreed to dismiss the remaining counts.            Sentencing was otherwise open. 


                 Knipe's prior criminal history was limited to a shoplifting incident.              As a 

first felony offender, Knipe faced a presumptive range of 25 to 35 years.3 

                 In her sentencing memorandum, Knipe's attorney focused on Knipe's low 

intellectual functioning and his childhood history of sexual abuse and neglect, which 

included being allegedly sexually abused by his uncle, C.T.'s father.                Knipe's attorney 

also emphasized Knipe's lack of criminal history and the alcohol-related nature of his 

actions.   She requested that the superior court refer Knipe's case to the statewide three- 

judge sentencing panel on the ground that any term within the presumptive  range would 

be "manifestly unjust" as applied to Knipe. 

                 In support of the referral request, Knipe's attorney provided a psychological 

evaluation conducted by Dr. Bruce Smith, who had been hired to provide "a current 

opinion as to [Knipe's] intellectual functioning and capacity to form judgments."                     Dr. 

Smith's evaluation detailed a history of special education placement, prior diagnoses of 

mental retardation, attention deficit hyperactivity disorder, and emotional disturbance, 

    2   Id. 

    3   AS 12.55.125(i)(1)(A)(i). 

                                                    3                                                 2394 

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

and Dr. Smith's suspicion that Knipe suffered from fetal alcohol effect.   Dr. Smith's test 

results confirmed that Knipe performs in the borderline range of intellectual functioning 

with a measured IQ of 70. 

                Dr. Smith found that Knipe "has a very simplistic view of the world and is 

highly dependent on the people around him for many of his choices or decisions."                    Dr. 

Smith also found that Knipe was "searching for answers to questions about his own 

abuse and his abuse against his victim."            Dr. Smith's evaluation did not include any 

predictions regarding Knipe's likelihood of recidivism or the degree of his amenability 

to   treatment,   other   than   to   note   that Knipe's   treatment   would   require   referrals   to 

specialized     agencies    so  that   "the  treatment    concepts    can   be  broken    down     to  an 

understandable level for him." 

                The presentence report also provided details about Knipe's low intellectual 

functioning and traumatic childhood, noting that the alleged sexual abuse by his uncle, 

C.T.'s father, was considered "substantiated" by the Office of Children's Services. 

                At the sentencing hearing, Superior Court Judge Eric A. Smith expressed 

frustration that Dr. Smith's evaluation had not included a sex offender risk assessment 

or any specific evaluation of Knipe's rehabilitation potential.              The court characterized 

Knipe's     request    for  referral  to  the   three-judge    panel   as   presenting    a  "colorable 

argument," and stated that the factors Knipe raised were "legitimate factors."                   But it 

ultimately found that Knipe had not presented clear and   convincing evidence that a 

sentence within the presumptive range would be "manifestly unjust" as applied to him, 

particularly given the severity of the physical injury to C.T. and the seriousness of the 

emotional and physical harm caused to a very young child. 

                Judge Smith therefore sentenced Knipe to 30 years with 5 years suspended, 

                                                    4                                              2394

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

25 years to serve, a sentence at the lowest end of the presumptive range.4 

                 Our jurisdiction to hear Knipe's appeal 

                 Under AS 12.55.120(e), a sentence within the applicable presumptive range 

"may   not   be   appealed   to   the   court   of   appeals   ...   on   the   ground   that   the   sentence   is 

excessive."5      In  Shinault   v.   State,   we   held   that   we   had   no   jurisdiction   under   AS 

 12.55.120(e) to hear Shinault's plain error argument that the sentencing judge should 

have sua sponte referred her sexual assault and kidnapping case to the three-judge panel 

on    "manifest     injustice"    grounds.6     We     concluded      that  there   was    "no   principled 

distinction" between the plain error "manifestly unjust" argument that Shinault  advanced 

on     appeal    and    her    more    straightforward       excessiveness       argument,      which     she 

acknowledged we did not have jurisdiction to hear under AS 12.55.120(e) and requested 

be forwarded as a petition to the Alaska Supreme Court.7 

                 Our decision in Shinault was issued during the original briefing in this case. 

In   his   reply   brief,   Knipe   questioned   whether   our   holding   in  Shinault   precluded   our 

hearing his appeal on jurisdictional grounds.   Because this issue was raised for the first 

time in Knipe's reply brief, and because the issue involved this Court's subject-matter 

jurisdiction, we asked the parties to file supplemental briefs on this issue. 

    4    See AS 12.55.125(i)(1)(A)(i); AS 12.25.125(o) (requiring presumptive sentence for 

an unclassified sex felony to also include at least 5 years suspended time and at least 15 years 


     5   We    note   that  there  have   been    recent  challenges     to  the  constitutionality   of  AS 

 12.55.120(e) that are currently being litigated in other cases before us. 

    6    258 P.3d 848, 850-51 (Alaska App. 2011). 

    7    Id. ; see also Appellate Rule 215(k). 

                                                      5                                                 2394

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

                 In his supplemental brief, Knipe urges this Court to overrule Shinault.  He 

 cites to legislative history that supports his position that the jurisdictional limitations of 

 AS 12.55.120(e) were intended to apply to excessive sentence claims only.8 

                We also note that the plain language of the AS 12.55.120(e) refers to appeals 

of sentences "on the ground that the sentence is excessive" and that this phrase is a term 

of art under the appellate rules.  Appellate Rule 215(a) distinguishes between "appealing 

a sentence on the ground that the sentence is excessive" and "appealing a sentence on 

grounds other than excessiveness, including but not limited to: illegality of the sentence; 

erroneous findings by the trial court that affect the statutory range of sentences to which 

the defendant is subject; and procedural errors in the sentencing proceeding."9 

                In   its   supplemental   briefing,   the   State   acknowledges   that   the   legislative 

history refers only to excessiveness claims and does not mention sentence appeals based 

on the three-judge panel referral process.   But the State argues that Shinault is consistent 

with the legislature's overall intent to limit review of sentences within the presumptive 

ranges. The State therefore argues that Shinault was correctly decided and that its holding 

precludes our review of Knipe's appeal. 

                We decline to overrule Shinault in the context of this case, in part because 

we   read   its   holding  more   narrowly   than   the   parties.  We   view  Shinault 's holding   as 

limited to cases in the same procedural posture as Shinault - that is, to cases where the 

"manifest injustice" argument is raised as a matter of plain error.  Because Shinault never 

requested a referral to a three-judge panel (or presented any arguments or evidence about 

why a referral was appropriate in her case), her "manifest injustice" claim on appeal was 

     8   See, e.g., Minutes of House Judiciary Committee, Senate Bill 56, testimony of Deputy 

 Attorney General Susan Parkes, 2:17-2:22 pm (Jan. 31, 2005). 

     9   Appellate Rule 215(a)(1)-(2) . 

                                                     6                                                 2394 

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

essentially that any competent judge would have sua sponte recognized that she deserved 

to be sentenced below the presumptive range.  As we noted at the time, this argument was 

virtually   indistinguishable   from   the   excessive   sentence   claim   that   Shinault   was   also 


                 Here, unlike in Shinault, Knipe requested a referral to the three-judge panel, 

and   he   provided   legal   and   factual   arguments   as   to   why   he   believed   a   referral   was 

appropriate in his case.  The trial court then made specific findings of fact and rulings of 

law related to Knipe's request that are now part of the record on appeal, and that form the 

basis for our review of the trial court's decision.           Unlike in Shinault, Knipe's "manifest 

injustice" claim is not simply an alternative way of raising an excessive sentence claim. 

We     conclude     that  the  restrictions    contained     in  AS   12.55.120(e)      are  therefore    not 

implicated by our review of this case. 

                 Having   determined   that   we   have   jurisdiction   to   hear   Knipe's   sentence 

appeal, we now turn to the merits of his claim. 

                 Why we conclude that Judge Smith was not clearly mistaken in denying 

                 Knipe's request for a referral to the three-judge panel 

                 As a first felony offender convicted of first-degree sexual abuse of a minor 

under   thirteen   years   old,   Knipe   faced   a   presumptive   range   of   25   to   35   years   and   a 

maximum term of 99 years.10           Because there were no statutory mitigating or aggravating 

factors in Knipe's case, the superior court was required to sentence Knipe within the 

presumptive range unless it granted Knipe's request for a referral to the statewide three- 

judge panel. 11 

      10  AS 12.55.125(i)(1)(A)(i). 

      11  See AS 12.55.165(a). 

                                                      7                                                  2394 

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

                 To obtain a referral to the three-judge panel, a defendant must prove by clear 

and   convincing   evidence   either   (1)   that   manifest   injustice   will   result   from   failure   to 

consider a relevant non-statutory mitigating factor such as extraordinary potential for 

rehabilitation; or (2) that a sentence within the applicable presumptive range would be 

manifestly unjust,  i.e. plainly unfair, as applied   to   this particular defendant. 12               Knipe 

requested a referral to the three-judge panel on the ground that a sentence within the 

presumptive   range   would   be   manifestly   unjust   as   applied   to   him;   he   did   not   argue 

extraordinary potential for rehabilitation or any other non-statutory mitigating factor. 

                 A referral to the three-judge panel is reserved for exceptional cases.13                 The 

presumptive range represents the legislature's assessment of the seriousness of an offense 

and   the   appropriate   penalty   for   the   "typical   offender   within   that   category."14      For   a 

presumptive sentence to be "manifestly unjust" as applied to a particular defendant, there 

must be "specific circumstances that make the defendant significantly different from a 

typical offender within that category or that make the defendant's conduct significantly 

different from a typical offense."15 

                 Here, Knipe argued that it would be manifestly unjust to impose 25 years 

to serve in his case given his low cognitive functioning, his childhood history of neglect 

and sexual abuse, his lack of criminal history, and his youth. The superior court carefully 

considered   these   factors   and   indicated   that   Knipe   was   raising   a   colorable   claim.        In 

      12  See id.; Manrique v. State , 177 P.3d 1188, 1193 (Alaska App. 2008);  Kirby v. State , 

 748 P.2d 757, 761-62 (Alaska App.1987). 

      13 Beltz v. State , 980 P.2d 474, 480 (Alaska App. 1999). 

      14 Id. 

      15 Id. 

                                                       8                                                  2394

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

denying Knipe's request for a referral to the three-judge panel, the superior court focused 

on the severity of the injury to a very young child and Knipe's failure to produce a sex 

offender assessment or any other evaluation of his rehabilitation potential. 

              We review a sentencing court's refusal to refer a case to the three-judge 

panel based on the totality of circumstances and will reverse only if the decision was 

clearly mistaken.16  Having independently reviewed the record and the facts of this case, 

we conclude that the superior court's refusal to send Knipe's case to the three-judge panel 

was not clearly mistaken. 


              We AFFIRM the judgment of the superior court. 

     16 Bossie v. State , 835 P.2d 1257, 1259 (Alaska App. 1992). 

                                             9                                          2394 

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