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Yako William Collins v State of Alaska (6/11/2021) ap-2704

Yako William Collins v State of Alaska (6/11/2021) ap-2704

                                                      NOTICE
  

         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
  

                                     E-mail:  corrections @ akcourts.gov
   



                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



YAKO WILLIAM COLLINS,  

                                                                     Court of Appeals No. A-12816  

                                     Appellant,                    Trial Court No. 3PA-08-00803 CR  



                           v.  

                                                                              O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                     Appellee.                          No. 2704 - June 11, 2021  



                  Appeal f           

                              rom the Superior Court, Third Judicial District, Palmer,  

                  Jonathan A. Woodman, Judge.  



                  Appearances: Jane B. Martinez, Anchorage, under contract with  

                                                

                  the Public Defender Agency (initial brief), and Kelly R. Taylor,  

                                                                                         

                  Assistant Public Defender (supplemental brief), and Samantha  

                  Cherot, Public Defender, Anchorage, for the Appellant. Eric A.  

                                                                                             

                  Ringsmuth,  Assistant  Attorney  General,  Office  of  Criminal  

                                                                                         

                  Appeals,   Anchorage,   and   Ed   Sniffen,   Attorney   General  

                                                                                          

                  Designate, Juneau, for the Appellee.  



                  Before: Harbison, Judge, Mannheimer, Senior Judge, *  

                                                                                         and Lyle,  

                                                **  

                  Superior Court Judge.             



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  



     **  

                                                                                                         

         Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  

Constitution and Administrative Rule 24(d).  


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

                              Judge MANNHEIMER.  



                              Yako William Collins stands convicted of first-degree sexual assault, and                                                                                   



the present appeal is the latest stage of the litigation to determine what law governs his                                                                                                 



 sentencing.   



                              In 2006, the Alaska legislature amended the provisions of AS 12.55.125 to                                                                                       



 establish significantly higher presumptive sentencing ranges for offenders convicted of                                                                                                     



                                    1  

 sexual felonies.                                                                                                                                                                             

                                        Collins committed his sexual felony in 2008, so he is subject to one of  



                                                                                                                                                                         

the increased sentencing ranges established in the 2006 sentencing statute.  



                                                                                                                                                                                           

                              In Collins's first appeal, this Court held - by a two-to-one vote, over the  



                                                                                                                                                                               

 dissent of Judge Bolger - that the 2006 sentencing statute implicitly created two new  



                                                                                                                                                                                     

 grounds for defendants to seek referral to the statewide three-judge sentencing panel  



                                                                                                                                                                          

 (the judicial body which is authorized to sentence defendants outside of the prescribed  



                                                                                                                                                                               

presumptive ranges).  See Collins v. State, 287 P.3d 791 (Alaska App. 2012).  



                                                                                                                                                                           

                              Morespecifically, the Collins majority heldthatdefendants who committed  



                                                                                                                                                                                  

 sexual felonies, and who were therefore subject to the increased sentencing ranges  



                                                                                                                                                                                    

prescribed by the 2006 statute, were entitled to have their cases referred to the three- 



                                                                                                                                                                                             

judge panel if these defendants showed either (1) that they did not have a history of  



                                                                                                                                                                                  

unprosecuted sexual offenses, or (2) that they had prospects for rehabilitation which,  



                                                                                                                                                                                                    

 in other offenders, would be considered "normal" or "good".  Collins, 287 P.3d at 797.  



                                                                                                                                                                                    

 We therefore remanded Collins's case to the superior court so that Collins could renew  



                                                                                                                                          

his request to have his case referred to the three-judge panel.  



                                                                                                                                                                                   

                              After we announced our decision in Collins, the State petitioned the Alaska  



                                                                                                                                                                

 Supreme Court to review our decision.  The supreme court granted the State's petition  



                                                                                                                                                                                     

 and agreed to review the case.  But in early 2013 - about three months after this Court  



        1      See SLA 2006, ch. 14,  4.  



                                                                                            - 2 -                                                                                       2704
  


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

issued   the   Collins   decision,   and   while   Collins's   case   was   still   pending   before   the  



supreme court - the Alaska legislature took action in response to                                                                                     Collins.   



                              In legislation that was eventually enacted as SLA 2013, chapter 43, the                                                                                       



legislature declared that this Court's majority opinion in                                                                       Collins had misconstrued the   



2006 sentencing statute. The legislature stated that it had                                                                     not  intended for sexual felony                      



defendants to have their cases referred to the three-judge sentencing panel based on the                                                                                                     



                                                                                                                        2  

two factors identified in the                                   Collins  majority opinion                                  - that, instead, Judge Bolger's  



                                                                                                                                                                                           3  

                                                                                                                                                                                               

dissent correctly characterized the intended meaning of the 2006 sentencing statute.                                                                                                          In  



                                                                                                                                                                                             

the same session law, the legislature amended the two statutes that govern referrals to the  



                                                                                                                     

three-judge sentencing panel, so that these statutes would explicitly incorporate Judge  



                                                      4  

                                                         

Bolger's interpretation.  



        2      Section 1(b) of SLA 2013, chapter 43 contains the following two legislative findings:   



               (1) in 2006, the legislature did not intend, by enacting [increased penalties for                     

        sexual felonies], and the legislature does not now intend[,] to create new or additional  

        means for a defendant convicted of a sexual felony and sentenced under AS 12.55.-  

        125(i) to obtain referral to a three-judge panel; [and]  



               (2) the legislature did not, in 2006, intend nor does the legislature now intend for  

                                                                                                                                                             

        a court to create new or additional means for a defendant convicted of a sexual felony  

        and sentenced under AS 12.55.125(i) to obtain referral to a three-judge panel.  



        3      See section 1(c) of SLA 2013, chapter 43.  

                                                         



        4  

                                                                                                                      

               See sections 22 and 23 of SLA 2013, chapter 43. Specifically, the legislature amended  

                                                                                                                                                              

AS 12.55.165 (the statute governing referrals to the three-judge panel) by adding subsection  

(c) which restricts a sentencing judge's authority to refer a case to the panel:  

  

                                                                                                                                                                  

               (c) A court may not refer a case to [the] three-judge panel ... if the defendant is  

                                                                                        

       being sentenced for a sexual felony under AS 12.55.125(i) and the request for the  

                                                                                                                                                                                      

        referral  is  based  solely  on  the  claim  that  the  defendant,  either  singly  or  in  

        combination, has  

                                                                                                                                                                       (continued...)  



                                                                                            -  3 -                                                                                       2704
  


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

                                 (Thehistory                    ofthis 2013 legislation, and the specifics of this                                                                 legislation, are   



more fully described in                                    State v. Seigle                     , 394 P.3d 627, 631-32 (Alaska App. 2017).)                                                                       



                                 The new session law went into effect on July 1, 2013.                                                                                 Eight months later,                 



toward the end of February 2014, the supreme court dismissed Collins's case without                                                                                                                 



issuing a decision on the merits.  The court simply declared that it had "improvidently   



granted" the State's petition for hearing.                                                                 See State v. Collins                                 , Supreme Court File        



No. S-14966, order dated February 25, 2014.                                                                        



                                 In themeantime, pursuant to our remand order in                                                                        Collins, the superior court                        



took   up   the   issue   of   whether   Collins's   case   should  be   referred   to   the   three-judge  



sentencing panel based on either of the two factors identified in the                                                                                                         Collins  majority  



decision.    



        4        (...continued)  



                         (1) prospects for rehabilitation that are less than extraordinary; or  



                                                                                                              

                         (2) a history free of unprosecuted, undocumented, or undetected sexual  

                 offenses.  



                                                                                                                                                                                                

        At the same time, the legislature enacted a corresponding amendment to AS 12.55.175  

                                                                                                                                                                          

(the statute defining the authority of the three-judge panel) by adding a new subsection (f).  

This subsection states in pertinent part:  



                                                                                                                                              

                 (f) A defendant being sentenced for a sexual felony under AS 12.55.125(i) may  

                                                                                                                                                                                                   

        not establish, nor may the three-judge panel find under (b) of this section or any other  

                                       

        provision of law, that manifest injustice would result from imposition of a sentence  

                                                                                                                                                  

        within the presumptive range based solely on the claim that the defendant, either  

         singly or in combination, has  



                         (1) prospects for rehabilitation that are less than extraordinary; or  



                                                                           

                         (2) a history free of unprosecuted, undocumented, or undetected sexual  

                 offenses.  



                                                                                                      - 4 -                                                                                                 2704
  


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

                     The superior court ultimately ruled that it did not matter whether Collins  

                                                                                                                           



could prove either of these two factors.  The court reasoned that, given the provisions of  

                                                                                                                                   



the  2013  session  law,  the  three-judge  panel  no  longer  had  the  authority  to  reduce  

                                                                                                                           



Collins's  sentence  even  if  Collins  proved  one  or  both  of  these  factors.                                    The  court  

                                                                                                                              



therefore denied Collins's request for a referral to the three-judge panel.  

                                                                                                                 



                     Collins now appeals the superior court's decision. He argues that, because  

                                                                                                                          



his crime was committed before the 2013 session law was enacted, the ex post facto  

                                                                                                                              



clauses of the federal constitution and the Alaska constitution prohibit the courts from  

                                                                                                              



applying the 2013 session law to him.  According to Collins, when the superior court  

                                                                                                                              



evaluated his request for referral to the three-judge panel, the court was required to apply  

                                                                                                                              



the law as stated in the Collins majority opinion. Likewise, Collins argues that if his case  

                                                                                                                                



is referred to the three-judge panel, the three-judge panel will be required to apply the  

                                                                                                                                 



law as stated in the Collins majority opinion.  

                                                                        



                     Toresolvethis issue, wemust examineand apply thedoctrineof"clarifying  

                                                                                                                      



legislation". This doctrine governs situations where a controversy arises concerning the  

                                                                                                                                  



proper interpretation of a statute and, while the controversy is being litigated in the  

                                                                                                                                 



courts, the legislature enacts new legislation which purports to clarify the intention or  

                                                                                                                                   



meaning of the pre-existing statute.  

                                                         



                     Under the doctrine of clarifying legislation,  there are times when new  

                                                                                                                               



legislation does not change existing law, but instead only clarifies existing law. In these  

                                                                                                                              



situations, if the courts are convinced that the new enactment was indeed "clarifying"  

                                                                                                                    



legislation, then the courts will treat the pre-existing statute as if it had always meant  

                                                                                                                             



what the later enactment declared its meaning to be.  

                                                                                   



                     This doctrine has special significance when, as in the present case, the  

                                                                                                                                 



statute at issue is a penal statute.  The ex post facto clause of the constitution forbids the  

                                                                                                                                  



legislature from enacting or amending a penal statute so as to retroactively criminalize,  

                                                                                                                    



                                                               -  5 -                                                         2704
  


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

                                                                                                                                                                                                                                                                                                                                                                  5  

or increase the penalty for, acts that have already been committed.                                                                                                                                                                                                                                                                                                     But when a new                                               



legislativeenactment qualifies as "clarifying"legislation, thecourts treatthepre-existing                                                                                                                                                                                                                                                                                                            



version of the statute as having                                                                                                                                   always  meant what the clarifying enactment declares it                                                                                                                                                                                                                                 



to mean. Thus, there has been no change in the law - and no issue of retroactivity when                                                                                                                                                                                                                                                                                                                                                



courts apply the now-clarified statute to criminal cases that arose before the legislature                                                                                                                                                                                                                                                                                                                  



 enacted the clarifying legislation.                                                                                                                                             



                                                                      This   doctrine   of   clarifying   legislation   is   central   to   our   resolution   of  



 Collins's appeal.                                                                         As we are about to explain, we conclude that the 2013 session law                                                                                                                                                                                                                                                                                   



qualifies as "clarifying" legislation.                                                                                                                                                    That is, the 2013 enactment did not change Alaska                                                                                                                                                                                   



 sentencing law; rather, the 2013 session law clarified the meaning of the pre-existing                                                                                                                                                                                                                                                                                                            



2006 sentencing statute.                                                                                                         



                                                                      This means that, despite what was said in the                                                                                                                                                                                          Collins  majority opinion, the                                                                                                        



2006 sentencing statute did not expand the grounds for seekingreferral to the                                                                                                                                                                                                                                                                                                                         three-judge  



panel.   Accordingly, under Alaska sentencing law as it existed in 2008 (when Collins                                                                                                                                                                                                                                                                                                                                       



committed his crime), Collins was not entitled to seek referral to the three-judge panel                                                                                                                                                                                                                                                                                                                                              



based solely on the two grounds identified in the                                                                                                                                                                                                               Collins  majority opinion.                                                                                                              



                                                                      However, as we also explain, Collins remains entitled to seek a referral to                                                                                                                                                                                                                                                                                                       



the three-judge panel by asserting that the prescribed presumptive sentencing range is                                                                                                                                                                                                                                                                                                                                                                   



manifestly unjust, given the circumstances of his case.                                                                                                                                                                                                                                              See  AS 12.55.165-175.                                                                                                                We  



therefore remand Collins's case to the superior court for consideration of this issue.                                                                                                                                                                                                                                                                                                                                                                



                  5                See, e.g., Collins v. Youngblood, 497 U.S. 37, 43; 110 S.Ct. 2715, 2719; 111 L.Ed.2d  



 30 (1990); State v. Creekpaum, 753 P.2d 1139, 1142 (Alaska 1988).  



                                                                                                                                                                                                                      -  6 -                                                                                                                                                                                                                 2704
  


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

             The doctrine of clarifying legislation             



                          Although   the legislature can                            amend a statute in response to                                 a judicial   



interpretation of that statute, the                          doctrine of          separation of powers prohibits the legislature                   



from enacting a law that purports to retroactively nullify a judicial interpretation of the                                                                      



               6 

statute.                                                                                                                                       

                  This result follows from the principle that the judicial branch of government  



                                                                       7  

                                                                           

is the ultimate interpreter of the law.  



                                                                                                                                                                  

                          Nevertheless,  when  the  courts  construe  a  statute,  our  main  goal  is  to  



                                                                                                    8  

                                                                                                                                                   

ascertain and implement the intent of the legislature.                                                  If courts were strictly prohibited  



                                                                                                                                                        

from  considering  later  legislative  actions  or  statements  concerning  the  proper  



                                                                                                                                                        

interpretation of a pre-existing statute, this would conflict with the principle that judicial  



                                                                                                             

construction of a statute should give effect to legislative intent.  



                                                                                                                                                                

                          Many American jurisdictions have resolved this tension by adopting the  



                                                                                                                                                                

doctrine of "clarifying legislation".   Under this doctrine, even though courts are not  



                                                                                                                                                           

bound by a legislature's later statement of intent concerning a pre-existing statute, courts  



       6     See, e.g., McClung v. Employment Development Dept. , 99 P.3d 1015, 1017-18 (Cal.  



2004).  



       7     Norman J. Singer and Shambie Singer, Sutherland Statutes and Statutory Construc- 



tion  45:3, Vol. 2A, pp. 22-23 (7th ed. 2014); Bodinson Manufacturing Co. v. California  

                                                                                                                                                                    

Employment Comm'n, 109 P.2d 935, 939 (Cal. 1941) ("The ultimate interpretation of a  

                                                                                                                    

statute is an exercise of the judicial power."); State v. Murray, 982 P.2d 1287, 1289 (Ariz.  

                                                                                               

 1999)  ("[T]he  legislature  is  vested  with  plenary  power  to  change  the  substantive  law  

                                                                                                                                               

prospectively, but it may not disturb vested substantive rights by retroactively changing the  

                                                                             

law that applies to completed events.  ...  The substantive legal consequence of past events  

                                                                                                                                                        

is determined by the law in effect at the time of the event, and the determination of that law  

                                                                                                                

is for the courts to decide.   ...  A fortiori , the separation of powers doctrine prevents the  

legislature from changing the rule of decision in completed cases.").  



       8     Millman v. State , 841 P.2d 190, 194 (Alaska App. 1992).  



                                                                              -  7 -                                                                         2704
  


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

are nevertheless entitled to consider the legislature's later action when courts interpret  



the pre-existing statute -even in instances where the legislature takes action in response  

                                                                                                                                       



to a recent judicial decision construing the statute in a different way.  

                                                                                                                        



                       The main limitation on this doctrine of clarifying legislation is that the  

                                                                                                                                                



legislature is not permitted to "clarify" the meaning of a statute in a way that conflicts  

                                                                                                                       



with an interpretation that hasalready beenannouncedbythejurisdiction's highest court.  

                                                                                                                                                       



This limitation stems from the principle that the judicial branch of government is the  

                                                                                                                                                



                                                                   9  

ultimate arbiter of a statute's meaning.  

                                                   



                                                                                                                                                  

                       As  the  United  States  Supreme  Court  explained  in  United  States  v.  



             10  

Stafoff,                                                                                                                                          

                 a statute that purports to clarify the meaning of an earlier statute "might be of  



                                                                                                                                                  11  

                                                                                                                                      

great weight" in assisting a court when the meaning of the earlier statute is "in doubt". 



                                                                                                                                           

But, as a matter of law, a court cannot be "in doubt" about the meaning of the earlier  



                                                                                                                                                  

statute when, with regard to the relevant issue, that statute has already been construed by  



                                                                                                                                           

the highest court in the jurisdiction.  In such instances, the high court's decision "must  



      9     See, e.g., State v. Murray, 982 P.2d 1287, 1289 (Ariz. 1999); McClung v. Employment   



Development Dept., 99 P.3d 1015, 1020 (Cal. 2004);  Western Security Bank v. Superior  

Court, 933 P.2d 507, 514 (Cal. 1997);                             State v. Aubuchon, 90 A.3d 914, 921 (Vt. 2014);   

Overton v. Washington State Economic Assistance Authority, 637 P.2d 652, 656 (Wash.  

 1981); Middleton v. City of Chicago                      , 578 F.3d 655, 662 (7th Cir. 2009); cf. People v. Cuevas                                 ,  

 168 Cal.Rptr. 519, 524 (Cal. App. 1980) ("[A] legislative clarification in [an] amend[ing]   

statute  may   not   be   used  to  overrule  [the]  exercise  of   the  judicial  function  of   statutory  

construction and interpretation.").  



      10    260 U.S. 477, 43 S.Ct. 197, 67 L.Ed. 358 (1923).  



      11    Stafoff, 260 U.S. at 480, 43 S.Ct. at 199.  



                                                                       -  8 -                                                                2704
  


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

stand   for   the   law"   as   it   existed   prior   to   the   enactment   of   the   purported   clarifying  

legislation. 12  



                                                                                                                   

                     Twodecisions oftheCaliforniaSupremeCourt -McClungv. Employment  



                                                                                                                                  

Development Department, 99 P.3d 1015 (Cal. 2004), and  Western Security Bank v.  



                                                                                                                       

Superior Court, 933 P.2d 507 (Cal. 1997) - illustrate the application of this doctrine.  



                                                                                                     

                     In  Western Security Bank, the California legislature had enacted a statute  



                                                                                                                               

declaring its intent to "confirm and clarify the law" and to "abrogate the holding" of a  



                                                                                                  13  

                                                                                                                                

California Court of Appeal decision issued in a previous year.                                        After analyzing the  



                                                                                                                                

wording and legislative historyofthenewstatute, the California Supreme Court held that  



                                                                                        14  

                                                                                                                        

this statute clarified, rather than changed, the existing law.                              As the California Supreme  



                                                                                                                  

Court later explained in McClung, "if the courts have not yet finally and conclusively  



                                                                                                                    

interpreted a statute and are in the process of doing so, a declaration of a later Legislature  



                                                                                                            15  

                                                                                                                     

as to what an earlier Legislature intended is entitled to consideration"                                       - although a  



                                                                                                                     

"legislative declaration of an existing statute's meaning is neither binding nor conclusive  



                                        16  

                                             

in construing the statute."  



                                                                                                                      

                     In contrast, theCaliforniaSupremeCourt held in McClung that alegislative  



                                                                                                                    

amendment could not be considered a "clarification", because the legislative amendment  



                                                                                                                                      

purported to overturn a final decision of the supreme court.  Because the supreme court  



     12   Ibid.  



     13    Western Security Bank, 933 P.2d at 513.  



     14   Id. at 520.  



     15   McClung , 99 P.3d at 1019-1020 (citing Western Security Bank, 933 P.2d at 514).  



     16    Western Security Bank, 933 P.2d at 514.   



                                                               -  9 -                                                         2704
  


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

had already "finally and definitively interpreted" the pre-existing statute, the legislature                                                     



                                                                                             17  

no longer had the power to "clarify" that statute.                                               



                                                                                                                                                

                         We turn, then, to situations where the doctrine of clarifying legislation  



                                                                           

potentially applies - situations where a jurisdiction's highest court has not yet issued  



                                                                                                        

a controlling interpretation of the pre-existing statute.  



                                                                                                                                                              

                         Under the doctrine of clarifying legislation, courts must begin with the  



                                                                                                                                                        

presumption that any new legislation represents a change to pre-existing law, not merely  



                                                                 18  

                                                                       

a clarification of pre-existing law.  



                                                                                                                                                            

                         If it is contended that new legislation represents a clarification of pre- 



                                                                                                                                                             

existing law rather than a change to that law, a court must examine the wording and  



                                                                                                                                                 

legislative history of the new enactment, as well as the context in which the legislature  



                                                                                                                                                            

acted.  Thus, a court should consider such things as the title and contents of the new  



                                                                                                                                               

enactment,  the  length  of  time  between  the  original  statute  and  the  new enactment,  



                                                                                                                                                    

whether the legislature acted in response to a recent controversy concerning the meaning  



                                                                                                                                                            

of the pre-existing law, and whether the legislature's new enactment is consistent with  



                                                                                                      19  

                                                                                        

a reasonable interpretation of the pre-existing statute.     



                                                                           

                         However, even when the legislature expressly declares that it is acting to  



                                                                                                                                                              

clarify  an  ambiguity  or  to  correct a misunderstanding  of a pre-existing  statute,  the  



                                                                                                                                                                 

legislature's declaration is not binding on the courts.  Rather, the legislature's action is  



       17    McClung , 99 P.3d at 1020.  



       18    See, e.g., State v. Fell, 97 P.3d 902, 906 (Ariz. App. 2004), affirmed, 115 P.3d 594  



(Ariz. 2005); People v. Lewis, 183 Cal.Rptr.3d 701, 705-06 (Cal. App. 2015); Indiana Dept.  

                                                       

of Revenue v. Kitchin Hospitality LLC, 907 N.E.2d 997, 1002 (Ind. 2009); State v. Dean, 357  

N.W.2d 307, 309 (Iowa 1984); Johnson v. Morris , 557 P.2d 1299, 1303 (Wash. 1976).  



       19    See, e.g., Macchione v. State , 123 So.3d 114, 116-17 (Fla. App. 2013); People v.  



Jackson , 955 N.E.2d 1164, 1170-71 (Ill. 2011).  



                                                                             -  10 -                                                                        2704
  


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

only a factor that the courts should consider when determining the meaning and effect                            



                                            20  

of the pre-existing statute.                                                                                                 

                                                And if a court believes that the meaning of the pre-existing  



                                                                                                                                        

statute is plain or unmistakable, any legislative attempt to "clarify" that statute (to make  



                                                                                                                                    21  

                                                                                                                                         

                                                                                                                

it mean something else) will be deemed a change in the law, not a clarification.  



                                                                                            

           Prior application of this doctrine under Alaska law  



                                                                                                                              

                      The Alaska Supreme Court has recognized and applied the "clarifying  



                                                                                                       

legislation" doctrine in a series of cases dating back to 1981.  



                                                                                                                                              

                      Our supreme court first addressed this doctrine in Anchorage v. Sisters of  



                                                                                                                                            

Providence in Washington, Inc., 628 P.2d 22 (Alaska 1981), a case which required the  



                                                                                                                                    

supreme court to construe the statutes which directed the state government to provide  



                                                                                                                                   

funds to local governments to help support health care facilities.  Under these statutes,  



                                                                                                                                       

the level of state funding was based on the number of hospital beds in the various health  



                                                                                                   

care facilities within each local government's jurisdiction.  



                                                                                                                                     

                      The specific dispute in Sisters of Providence was whether the state statutes  



                                                                                                                                          

allowed local governments to distribute the state funds to whichever local health care  



                                                                                                                                            

facilities they wished to, or whether local governments were required to distribute the  



                                                                                                                                           

funds to the various health care facilities in proportion to the amount of funding that was  



                                                                                 22  

                                                                     

attributable to that particular health care facility.     



      20   See, e.g., Stockton Savings & Loan Bank v. Massanet                                , 114 P.2d 592, 595 (Cal. 1941);  



People v. Cuevas, 168 Cal.Rptr. 519, 524 (Cal. App. 1980).  



      21  

                                          

           Heckler v. Turner, 470 U.S. 184, 210-11; 105 S.Ct. 1138, 1152-53; 84 L.Ed.2d 138  

(1985).  



      22   Sisters of Providence, 628 P.2d at 24.  



                                                                   -  11 -                                                               2704
  


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

                       The litigation over the meaning of the state statutes began in the Anchorage                                  



superior   court   -   and,  in   response   to   the   superior   court's   decision,   the   legislature  



                                                                                                                        23  

amended the law that specified how the state funds could be spent.                                                                      

                                                                                                                              This amended  



                                                                                                                                       

version of the statute clearly specified that local governments were required to distribute  



                                                                                                                                               

the state funds to each health care facility in accordance with the revenues which were  



                                                                   

attributable to that particular facility.  



                                                                                                                                                   

                       The new version of the statute clearly governed all future  distribution of the  



                                                                                                                                              

state  funds,  but  the  question  before  the  supreme  court  was  how  these  funds  were  



                                                                                                                        

supposed to have been distributed under the previous version of the statute.  



                                                                                                                                 

                       Obviously,onemight arguethatthelegislature'srecentactiondemonstrated  



                                                                                                                                                   

that the earlier version of the statute must have meant something different - while, on  



                                                                                                                                             

the other hand, one might argue that the legislature's recent action was intended to clarify  



                                                                                                                                           

what the statute had always meant.  And the supreme court noted that there was judicial  



                                                                                       24  

                                                                                            

                                                              

authority to support either of these presumptions.  



                                                                                                                                                    

                       However, the supreme court concluded that the most persuasive factor in  



                                                                                                                                                    

the Sisters of Providence litigation was the fact that the Alaska legislature had acted in  



                                                                                                                                                         

response to an ongoing dispute about the meaning of the pre-existing version of the law:  



                         

                                                                                                                         

                                   There is yet another body of modern authority that  

                                                                                                                              

                       takes  [the  fact  of  a]  dispute  or  ambiguity  surrounding  a  

                                                                                                            

                       statute to be a strong indication that subsequent amendment  

                                                                                                                                  

                       was intended  to  clarify, rather than  change,  existing  law.  

                                                                                                                              

                       2A C. Sands, Sutherland Statutory Construction,  49.11, at  

                                                                                                                        

                       265-66  (4th  ed.  1973).                        See  Bowen  v.  Statewide  City  

                                                                                                                        

                       Employees Retirement System, 72 Wash.2d 397, 433 P.2d  

                                                                                                               

                        150, 153-54 (1967). We think this approach is the preferable  



      23   Id. , 628 P.2d at 25-27.  



      24   Id. , 628 P.2d at 28.  



                                                                      -  12 -                                                                  2704
  


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

                     one[,]   in   that   it   encourages   realistic   appraisal   of   the  

                                                                                                           

                     circumstances surrounding the amendment of a statute rather  

                                                                                                        

                    than mechanical adherence to one or the other of the above  

                                                                                                       

                    rules of statutory construction.  

                                                                     



Sisters of Providence, 628 P.2d at 28.  

                                                            



                    Although the supreme court emphasized that it was not legally bound by  

                                                                                     



any declaration the legislature might have made about the purpose of the new enactment,  

                                                                                                                     



the court declared that, given the circumstances surrounding the legislature's action, a  

                              



"realistic appraisal" of the legislature's action led to the conclusion that the amendment  

                                                                                                                   



of the funding statute should be deemed a clarification of pre-existing law rather than a  

                                                                                                                                   



change in the law.  Sisters of Providence, 628 P.2d at 28.  

                                                                                         



                     The supreme court followed the same  approach in Matanuska-Susitna  

                                                                                                       



Borough v. Hammond, 726 P.2d 166 (Alaska 1986), where the court reviewed the  

                                                                                                                                



statutes that dealt with state revenue sharing payments and tax limitations based on  

                                                                                                                                 



population.  

                   



                    Four  local  governments  sought  a  judicial  interpretation  of  the  term  

                                                                                                                             



"population" used  in these statutes.                      While this litigation  was pending,  and  after  a  

                                                                                                                                   



superior court judge had affirmed the reasonableness of the population calculations that  

                                                                                                                               



the Department of Community and Regional Affairs had used, the Alaska legislature  

                                                                                                                     



amended the pertinent statute - but the legislature made no change to the language  

                                                                                                                       



delegating  population  calculations  to  the  Department  of  Community  and  Regional  

                                                                                                                       



Affairs, nor did the legislature enact any further definition of the term "population".  

                                                                                                                                   



                     On appeal, the supreme court affirmed the superior court's decision and  

                                                                                                                               



upheld the Department's population calculations. In reaching this decision, the supreme  

                                                                                                                        



court  relied  on  the  legislature's  failure  to  amend  the  term  "population"  when  the  

                                                                                                                                



legislature revisited the pertinent statute during the pendency of the litigation.   The  

                                                                                                                              



                                                              -  13 -                                                         2704
  


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

supreme court interpreted the legislature's failure to amend this portion of the statute as  

                                                                                                                                  



an implicit legislative endorsement of the pre-existing statutory language - and, more  

                                                                                                                             



particularly, an endorsement of the superior court's ruling that the Department had  

                                                                                                                               



reasonablyinterpretedtheterm"population". Matanuska-Susitna Borough v. Hammond,  

                                                                                                                     



726 P.2d at 176 & n. 21.  

                                         



                     In subsequent cases, the Alaska Supreme Court has continued to apply the  

                                                                                                                                 



doctrine of clarifying legislation, albeit with certain limitations.  The supreme court has  

                                                                                                                                



declared that this doctrine cannot be used to alter the meaning of a pre-existing statute  

                                                                                                 



which was  not  ambiguous regarding the issue being litigated.   See, e.g., Hillman v.  

                                                                                                                                  



Nationwide Mutual Fire Insurance Co., 758 P.2d 1248, 1252 (Alaska 1988).  

                                                                                                                        



                    And the supreme court has repeatedly declared that little weight, if any,  

                                                                                                                               



should be given to the legislature's statements that it acted to "clarify" the intent of a  

                                                                                                                                   



previous legislature.  Thus, for example, in Hageland Aviation Services, Inc. v. Harms,  

                                                                                                                          



210 P.3d 444 (Alaska 2009), the legislative history of a newly-enacted session law  

                                                                                                                               



contained statements indicating that the legislature viewed the new enactment as merely  

                                                                                                                           



clarifying pre-existing law.  But after the supreme court examined the language of the  

                                                                                                                                



pre-existing  law,  its  history,  and  the  way  in  which  the  pre-existing  law  had  been  

                                                                                                                             



interpreted  by  the Alaska Department of Labor,  the supreme court concluded  that,  

                                                                                                                              



despite the legislature's statements to the contrary, the new session law had in fact  

                                                                                                                               



changed the law.  Id., 210 P.3d at 448 n. 12.  

                                                                      



                    See also Hillman, 758 P.2d at 1252; Flisock v. Division of Retirement and  

                                                                                                                               



Benefits, 818 P.2d 640, 645 (Alaska 1991); Department of Revenue v. OSG Bulk Ships,  

                                                                                                                            



Inc., 961 P.2d 399, 406 & n. 13 (Alaska 1998).  

                                                               



                     But with these limitations, the supreme court has repeatedly applied the  

                                                                                                                                



doctrine of clarifying legislation in situations where the legislature acts in response to a  

                                                                                                                                   



                                                              -  14 -                                                         2704
  


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

recently-arisen controversy concerning the meaning of a statute (and especially where                                                               



the legislature takes action while this controversy is still being litigated).                                                                               



                             The most recent example is the supreme court's decision in                                                                   Angelica C. v.             



Jonathan C.                , 459 P.3d 1148 (Alaska 2020).                                      



                             The   issue   presented   in   Angelica   C.   was   whether   the   superior   court  



possessed   the   statutory   authority   to   terminate   parental   rights   in   a   child  custody  



proceeding.   During the trial court litigation in                                                  Angelica C.              , the judge ruled that he did                       



not possess this authority, and the legislature soon amended the statute in response to the                                                                                       



judge's ruling - adding language that explicitly granted this authority to the superior   



              25  

 court.                                                                                                                                                                          

                   According to the sponsor of this amendment, the new version of the statute did  



                                                                                                                                                                          

not establish any new rule, but rather was intended "to simply make existing policy  



                                        26  

                          

 abundantly clear."  



                                                                                                                                                                        

                             The supreme court acknowledged the sponsor's explanation of the purpose  



                                                                                                                                                                                

behind the new version of the statute, but the supreme court then pointed to what it had  



                

 said in Hillman :  



                                           [The sponsor's] comments notwithstanding, we have  



                                                                                                                                         

                             said that asking ... "whether a legislature which has amended  

                                                                                                                                                        

                             a statute intends to change or merely clarify the statute is  

                                                                                                                                                

                             usually fruitless" because the legislature's opinion as to the  

                                                                                                                                                

                             meaning of a statute passed by an earlier legislature is no  

                                                                                                                                                             

                             more persuasive than that of a knowledgeable commentator.  



                                                                  27  

                                                      

Angelica C. , 459 P.3d at 1157.  



        25    Angelica C. , 459 P.3d at 1155-57.  



        26    Id. at 1157.  



        27     Quoting Hillman v. Nationwide Mutual Fire Insurance Co., 758 P.2d 1248, 1252   



                                                                                                                                                             (continued...)  



                                                                                      -  15 -                                                                                 2704
  


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

                        Thus, the supreme court explained, it was not bound by any legislative                                            



declaration   of   purpose.     Rather,   "[courts]   independently   decide   whether   the   recent  

amendments change the effect of [the statute] or merely clarify its meaning."                                                              28  



                                                                                                                                       

                        The supreme court next examined the history that led up to the legislature's  



                                                                                                                                                         

enactment of the new version of the statute, and analyzed the wording and structure of  



                                                                                                                                              

the new version in comparison to the older version. Based on these factors, the supreme  



                                                                                                                                                     

court concluded that the legislature's recent action had not changed the law; rather, "the  



                                                                                                                                     

effect of the 2018 amendments was to clarify the [pre-existing] statute."  Ibid.  



                                                                                                                                                         

                        The supreme court's decision in Angelica C. is the most recent example of  



                                                                                                                                                      

the doctrine of clarifying legislation as we have described it here. The law presumes that  



                                                                                                                                       

any new statute constitutes a change in the law rather than a clarification of pre-existing  



                                                                                                                                                       

law, but this presumption can be rebutted by the wording and legislative history of the  



                                                                                                                       

new statute, by the context in which the legislature acted, and by whether the wording  



                                                                                                                                                              

of the newstatute is consistent with areasonable interpretation of the pre-existing statute.  



                                                                                                                                           

                        Because the Alaska Supreme Court has adopted the doctrine of clarifying  



                                                                                                       

legislation, we will apply that doctrine to Collins's case.  



      27    (...continued)  



(Alaska 1988), as construed in Hageland Aviation Services, Inc. v. Harms, 210 P.3d 444, 448  

n. 12 (Alaska 2009).  



      28    Angelica C. , 459 P.3d at 1158.  



                                                                         -  16 -                                                                    2704
  


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

                             Why we conclude that the 2013 session law clarified Alaska's pre-existing                                                                                                                                                                              

                           sentencing law rather than changed it                                                                                                                



                                                       As   we   have   explained,   our   analysis   under   the   doctrine   of   clarifying  



 legislation begins with the presumption that any new legislation represents a change in                                                                                                                                                                                                                                                               



 the law.  The question in Collins's case is whether that presumption is rebutted by the                                                                                                                                                                                                                                                           



 wording and legislative history of the 2013 session law, as well as the circumstances that                                                                                                                                                                                                                                                      



prompted the legislature to act.                                                                                                 



                                                       Here, the legislature enacted the 2013 session law in quick response to this                                                                                                                                                                                                              



 Court's decision in                                                             Collins.    In that 2013 session law, the legislature declared that its                                                                                                                                                                                             



purpose was (1) to clarify the intent of the pre-existing sentencing statute, (2) to disavow                                                                                                                                                                                                                                  



 the interpretation of the law adopted by the                                                                                                                                           Collins   majority, and (3) to endorse the                                                                                                                



 interpretation advocated in Judge Bolger's dissent.                                                                                                                                                             Finally, the legislature acted while                                                                                    



 this issue of statutory interpretation was still pending in front of the supreme court -                                                                                                                                                                                                                                                       i.e.,  



 still unresolved by the highest judicial authority in Alaska.                                                                                                                                                  



                                                       The   legislature's   statement   of   purpose   is   not   binding   on   this  Court.   



Nevertheless,   given   the   fact   that   there   was   reasonable   debate   regarding   the   proper  



 interpretation   of   the   pre-existing   law   (as   demonstrated   by   this   Court's   two-to-one  



 decision in  Collins), and given the circumstances surrounding the Alaska legislature's   



 enactment of the 2013 session                                                                                                     law,   we conclude that this session law represents                                                                                                                                                                      a  



 clarification of Alaska's pre-existing sentencing law rather than a change to that law.                                                                                                                                                                                                                                                      



 Thus,   we   must   treat   the   2006   sentencing   statute   as   if   it   had   always   embodied  the  

 legislature's later clarification.                                                                                            29  

                                                                                                                                       



              29             Western  Security  Bank,  933   P.2d   at   510,  514  ("Such  a  legislative  act  has  no  



 retrospective effect because the true meaning of the statute remains the same.");                                                                                                                                                                                                                                                 State v.  

Aubuchon ,  90  A.3d  914,  921  (Vt.  2014)  ("[W]hen  the  Legislature  enacts   a   clarifying  

                                                                                                                                                                                                                                                                                                            (continued...)  



                                                                                                                                                                     -  17 -                                                                                                                                                                  2704
  


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

                          Becausethe2013                    session lawwasaclarificationofAlaska's sentencing law                                                 



rather   than   a   modification   of   it,   the   ex   post   facto   clauses   of   the   federal   and   state  



constitutions do not bar the courts from applying the law stated in the 2013 session law                                                                         



to cases that arose before the legislature acted - including Collins's own case, which                                                            



                                                                                                                           30  

provided the impetus for the legislature's clarifying enactment.                                                                 



                                                                                                                                                                   

                          We therefore hold that Collins and other similarly situatedoffenders arenot  



                                                                                                                                                                  

entitled to seek referral of their cases to the three-judge sentencing panel solely on the  



                                                                                                               

two grounds announced in the Collins majority opinion.  



                                                                                                                                                              

                          We acknowledge that our conclusion is seemingly at odds with a short  



                                                                                                                                                                          

passage from this Court's decision in State v. Seigle, 394 P.3d 627 (Alaska App. 2017).  



                                                                                                                                                              

                          The defendant in Seigle was sentenced by the three-judge sentencing panel  



                                                                                                                                                             31  

                                                                                                                                                                 and  

in mid-November 2012, two weeks after this Court issued our decision in Collins,  



                                                                                                                                   

the three-judge panel relied in part on the Collins decision when it sentenced Seigle to  



                                                                                                                                                 32  

                                                                                                                                                               

                                                                                                                                                      The State  

a term of imprisonment below the applicable presumptive sentencing range.  



                                                                                                                                             

appealed Seigle's sentence, contending that the three-judge panel acted illegally when  



                                        

it relied on Collins.  



       29    (...continued)  



amendment, the true meaning of the earlier version of the statute remains the same.").   



       30    See Greenwich Hospital v. Gavin                               , 829 A.2d 810, 815-16 (Conn. 2003) ("Implicit in  



[this Court's] decisions allowing the legislature to clarify its intent in prior legislation [is] the   

recognition that pending cases, even those that eventually spawned the clarifying legislation,   

could be affected [by the legislature's action]."                                       Thus, "clarifying statutes can apply to cases   

pending at the time of their effective dates, even those [cases] which provided the impetus  

for the clarifying legislation in the first instance.").   



       31    Seigle, 394 P.3d at 631.  



       32    Id. at 630.  



                                                                              -  18 -                                                                          2704
  


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

                        More specifically, the State argued that under Alaska Appellate Rules 507                                                     



 and 512, no decision of this Court takes legal effect until the parties have had a chance                                                      



                                                                                                                 33  

to petition the Alaska Supreme Court to review and reverse it.                                                                 

                                                                                                                      The State did indeed  



                                                                                                                                                      

petition the supreme court to review our decision in Collins, and the State's petition was  



                                                                                                                                             34  

                                                                                                                                                 Thus,  

pending when the three-judge panel sentenced Seigle in mid-November 2012.  



                                                                                                                                                  

 according to the State, the Collins decision had not taken legal effect when the three- 



                                                                                                                                   

judge panel sentenced Seigle, and therefore the three-judge panel acted illegally when  



                                                                                                                                                

it relied on Collins.  The State contended that, because its petition for hearing in Collins  



                                                                                                                                                  

was still pending before the supreme court at the time of Seigle's sentencing, the three- 



                                                                                                                                            

judge panel was required to abide by the pre- Collins interpretation of the pertinent  



                                    35  

                                         

 sentencing statutes.  



                                                                                                                                                 

                        In our Seigle decision, this Court explained at some length why the State's  



                                                                                                                                            

interpretation of Appellate Rules 507 and 512 was incorrect - why published decisions  



                                                                                                                                                   

 of this  Court become legal precedent as soon  as they  are issued,  and remain  legal  



                                                                                                                                                         36  

                                                                                                                                                              

precedent unless they are affirmatively reversed or vacated by the supreme court.  



                                                                               

Then, in a short concluding paragraph, we applied this legal conclusion to the facts of  



                           

 Seigle's case:  



                          

                                                                                                                          

                                    Returning to Seigle's case, the supreme court never  

                                                                                                               

                        overruled this Court's decision in Collins, so it was binding  

                                                                                                                    

                        precedent on the lower courts until the legislature amended  

                                                                                                                           

                        the sentencing statutes, effective July 1, 2013.  Thus, when  

                                                                                                                           

                        the three-judge panel sentenced Seigle in November 2012  



      33    Id. at 632.  



      34    Id. at 631.  



      35    Id. at 632.  



      36    Id. at 632-34.  



                                                                         -  19 -                                                                    2704
  


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

                     [two weeks after Collins was decided], Collins was good law  

                                                                                                            

                    and it was not error for the panel to rely on Collins.  

                                                                                                     



Seigle, 394 P.3d at 634-35.  

                               



                    Because this paragraph speaks of the legislature's having "amended" the  

                                                                                                                                



sentencing statutes in 2013, it might be read as suggesting that this Court interpreted the  

                                                                                                                                 



2013 session law as having affirmatively changed Alaska's sentencing law, as opposed  

                                                                                                                        



to having clarified it.  But that was not the issue this Court was addressing.  Rather,  

                                                                                                                          



we were explaining why we rejected the State's proposed interpretation of Appellate  

                                                                                                                      



Rules  507  and  512,  and  this  paragraph  was  the  short  concluding  portion  of  that  

                                                                                                                               



explanation.  

                     



                    To the extent that our decision in Seigle may have inferentially turned on  

                                                                                                                                 



the distinction between "amending" legislation and "clarifying" legislation, and even  

                                                                                                                              



though this paragraph from Seigle refers to the 2013 session law as having "amended"  

                                                                                                                    



the sentencing statutes, we now explicitly hold that the 2013 session law did not change  

                                                                                                                          



those sentencing statutes, but rather clarified them.  

                                                                                



           Why we remand Collins's case to the superior court so that the superior  

                                                                                                              

          court  can  assess  whether,  given  the  totality  of  the  circumstances  in  

                                                                                                                       

          Collins's case,  the applicable presumptive sentencing  range would be  

                                                                                                                       

          manifestly unjust  

                            



                    Although Collins cannot seek a referral to the three-judge sentencing panel  

                                                                                                                             



based  solely  on  the  two  factors  described  in  the  Collins  majority  opinion,  he  is  

                                                                                                                                  



nevertheless entitled to seek a referral to the three-judge panel based on the ground that  

                                                                                                                               



his  prescribed  presumptive  sentencing  range  would  be  manifestly  unjust  under  the  

                                                                                                                                



circumstances of his case. And in making this claim that the totality of the circumstances  

                                                                                                                



                                                              - 20 -                                                          2704
  


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

 calls for a lesser sentence, Collins can rely on arguments (1) that he has committed no                                                                  



prior sexual offenses, and (2) that he has good prospects for rehabilitation.                                                                                            



                              We explained this aspect of Alaska sentencing law in                                                                    State v. Seigle                 , 394   



 P.3d 627, 635-38 (Alaska App. 2017).                                                    As we noted in                     Seigle, this Court's decision in                                 



 Collins  did not alter the analysis that a sentencing judge is required to conduct when a                                                                                                     



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



 applicable presumptive range would be manifestly unjust. In such cases, the sentencing                                                                                   



                                                                                                                       37  

judge   is   required   to   employ   the   Chaney   criteria                                                                                                                            

                                                                                                                             to  assess  the  totality  of  the  



                                                                                                                                                                            

 circumstances of the defendant's case, and to then determine whether all sentences  



                                                                                                                                                                                        

within the applicable presumptive range would be "obviously unfair".  Seigle, 394 P.3d  



      

 at 635.  



                                                                                                                                                                                          

                              In  making  this  assessment,  the  court  must  evaluate  the  facts  of  the  



                                                                                                                                                                        

 defendant's  current  criminal  episode,  plus  the  defendant's  history  and  underlying  



                                                                                                                                                                                       

 circumstances. Because of this (as we explained in Seigle), the court's assessment "will  



                                                                                                                                                                

 often  include  circumstances  that,  standing  alone,  would  be  [legally]  insufficient  to  



                                                                                                                                                                   

warrant a departure from the applicable presumptive sentencing range":  



                                

                                                                                                                                                                

                                             For  example,  a  sentencing  judge  might  reject  a  

                                                                                                                                                          

                              defendant's                    assertion                of       "extraordinary                        potential               for  

                                                                                                                                               

                              rehabilitation," but if the defendant has favorable prospects  

                                                                                                                                                      

                              for  rehabilitation,  the  judge  would  still  consider  those  

                                                                                                                                     

                              favorable prospects as part of the totality of the circumstances  

                                                                                                                                         

                              when determining whether a sentence within the presumptive  

                                                                                                                                                                      

                              range would be manifestly unjust under the Chaney criteria.  

                                                                                                                              

                              Similarly, there may be situations where a sentencing judge  

                                                                                                                                                     

                              is legislatively precluded (because of the existence of certain  

                                                                                                                                                              

                              aggravating factors) from sending the defendant's case to the  



        37     State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), and AS 12.55.005 (codifying the   



 Chaney sentencing criteria).  



                                                                                          - 21 -                                                                                        2704
  


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

                     three-judge sentencing panel on the basis of extraordinary  

                                                                                            

                     potential for rehabilitation.   Nevertheless, if the defendant  

                                                                                                 

                     asserts that any sentence within the applicable presumptive  

                                                                                              

                     range  would  be  manifestly  unjust  as  applied  to  him,  the  

                                                                                                           

                     sentencing  judge  would  still  be  required  to  consider  the  

                                                                                                           

                     defendant's potential for rehabilitation as part of the totality  

                                                                                                      

                     of the circumstances under the Chaney criteria in deciding  

                                                                                                   

                     whether "manifest injustice" would result from a sentence  

                                                                                                   

                     within the presumptive range in that case.  

                                                                              



Seigle, 394 P.3d at 635.  See also our discussion of this same issue in Duncan v. State,  

                                                                                                                            



782 P.2d 301, 304 (Alaska App. 1989).  

                                                                



                     Thus, even though the superior court correctly ruled that the three-judge  

                                                                                                                    



panel was barred from granting relief to Collins based solely on the two factors identified  

                                                                                                                       



in Collins, this ruling did not constitute a complete resolution of Collins's request to have  

                                                                                                                              



his case referred to the three-judge panel.  Collins could still seek a referral to the three- 

                                                                                                                            



judge panel on the theory that a sentence within the applicable presumptive range would  

                                                                                                                            



be manifestly unjust, given the totality of the facts of his case.  

                                                                                                 



                     We note that, at the time the superior court denied Collins's request for a  

                                                                  



referral to the three-judge panel, this Court had not yet issued our decision in Seigle.  

                                                                                                                                      



Thus, the superior court did not have the benefit of our decision in Seigle when it denied  

                                                                                                                           



Collins's request for referral to the three-judge panel.  

                                                                                     



                     For this reason, we conclude that we must remand Collins's case to the  

                                                                                                                                



superior court, so that the superior court can renew its consideration of whether the  

                                                                                                                                



prescribed presumptive sentencing range would be manifestly unjust under the facts of  

                                                                                                                                  



Collins's case.  

                         



                     In its supplemental brief to this Court, the State argues that it would be  

                                                                                                                      



improper for us to remand Collins's  case to the superior court for this purpose -  

                                                                                                                                 



because, according to the State, the transcript of Collins's sentencing hearing shows that  

                                                                                                                                



                                                              - 22 -                                                          2704
  


----------------------- Page 23-----------------------

Collins's attorney affirmatively waived any argument that Collins's case should be  

                                                                                                                     



referred  to  the  three-judge  sentencing  panel  on  the  ground  that  the  applicable  

                                                                                                                    



presumptive sentencing range was manifestly unjust.  

                                                                                    



                    The  transcript  of  the  sentencing  proceeding  does,  indeed,  support  the  

                                                                                                                                



State's contention that Collins's attorney waived any "manifest injustice" argument.  

                                                                                                                                      



Here is the pertinent exchange between Collins's attorney and the sentencing judge, as  

                                                                                                                                  



transcribed:  

                    



                               The Court:  It strikes me that [the] kind of thing [you  

                                                                                                          

                    are  arguing]  would  go  more  to  the  "manifest  injustice"  

                                                                                                 

                     standard than the "exceptional potential for rehabilitation"  

                                                                                          

                     [standard].  



                              Defense Attorney :  Well, let me just check.  Did I also  

                                                                                                           

                    include manifest injustice in my brief?  

                                                                       



                               The Court:  I thought you had ...  

                                                                                  



                              Defense Attorney :  I thought I had.  

                                                                                      



                               The Court:   ... and that's why I wanted to be clear,  

                                                                                                        

                    because ...  

                                      



                              Defense Attorney :  Okay.  I don't - I hadn't really  

                                                                                                        

                    thought of that.  

                                              



                               The Court:  I'll double check that if you like, but ...  

                                                                                                               



                              Defense Attorney :  Oh, yes.  

                                                                           



                               The Court:  Yeah.  It's in both; that's why I ...  

                                                                                                   



                              Defense Attorney :  It's in both.  Yes.  

                                                                                        



                                                              - 23 -                                                          2704
  


----------------------- Page 24-----------------------

                               The Court: ... was sounding a little perplexed, frankly.  

                                                                                                     



                              Defense Attorney :  Yes.  Let me go back there and say  

                                                                                                            

                    that we want to withdraw the manifest injustice.  

                                                                                 



                    However, after this exchange in which the defense attorney apparently  

                                                                                                                     



withdrew his "manifest injustice" challenge to the sentence, the transcript shows that the  

                                                                                                                                 



sentencing hearing proceeded as if Collins's attorney had never withdrawn this claim.  

                                                                                                                                      



The  prosecutor continued to argue against Collins's "manifest injustice" claim, the  

                                                                                                                                



sentencing judge continued to speak about this claim as an active issue, and, at the end  

                                                                                                                                



of the hearing, the sentencing judge issued a ruling on Collins's "manifest injustice"  

                                                                                                                      



claim.  

           



                    Because of this incongruity in the transcript, this Court ordered a copy of  

                                                                                                                                  



the original audio recording of the sentencing hearing held on November 19, 2009 -  

                                                                                                                        



and this audio recording reveals that the transcript is grossly mistaken.  

                                                                                                               



                    At the point where the transcript has the defense attorney saying, "Yes. Let  

                                                                                                                                 



me go back there and say that we want to withdraw the manifest injustice.", the audio  

                                                                                                                             



recording shows that the defense attorney said exactly the opposite.   The attorney's  

                                                                                                                     



actual words were:  

                               



                              Defense Attorney : Yes. Let me, let me back up, there,  

                                                                                                        

                    and  say  we're  not  - we  will  not  withdraw  the  manifest  

                                                                                                   

                    injustice.  

                                    



In sum, Collins's attorney did not waive the argument that Collins's case should be  

                                                                                                                                 



referred  to  the  three-judge  panel  on  the  ground  that  the  prescribed  presumptive  

                                                                                                                 



sentencing range would be manifestly unjust.  

                                                                        



                    We  therefore  remand  Collins's  case  to  the  superior  court  so  that  the  

                                                                                                                                



superior court can renew its consideration of this issue.  

                                                                                      



                                                              - 24 -                                                          2704
  


----------------------- Page 25-----------------------

          Conclusion  



                    We hold that the provisions of SLA 2013, chapter 43 did not alter Alaska  

                                                                                                                          



sentencing law, but instead clarified it.  This being so, application of this clarified law  

                  



to Collins (and to any other similarly situated offenders) does not violate the ex post facto  

                                                                                                                             



clause of either the federal constitution or the Alaska constitution.  Thus, the superior  

                                                                                                                       



court correctly ruled that Collins could not seek a referral to the three-judge sentencing  

                                                                                                                    



panel based solely on the factors identified by this Court in Collins.  

                                                                                                        



                    However, Collins is still able to seek a referral to the three-judge panel  

                                                                                                                            



based on a claim that, given the totality of the circumstances of his case, the prescribed  

                                                                                                                    



presumptive sentencing range is manifestly unjust when applied to him.  We therefore  

                                                                                                       



remand Collins's case to the superior court for consideration of this question.  

                                                                                                                       



                    We do not retain jurisdiction of this appeal.  

                                                                                        



                                                             - 25 -                                                          2704
  

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