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Tice v. State

Court of Appeals of Alaska

December 19, 2008

Bruce TICE, Appellant,
v.
STATE of Alaska, Appellee.

David D. Reineke, Assistant Public Defender, Kathleen Murphy, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before : COATS, Chief Judge, MANNHEIMER, Judge, and STEWART, Senior Court of Appeals Judge.[*]

Page 1176

OPINION

COATS, Chief Judge.

Bruce Tice was convicted of manslaughter [1] and assault in the first degree.[2] The charges arose out of a single car accident that killed a five-year-old child and injured a three-year-old child who were passengers in the car.

Tice was convicted under the pre-March 2005 sentencing provisions. His two felony offenses, manslaughter and assault in the first degree, are both class A felonies. The maximum term of imprisonment for a class A felony is 20 years.[3] Tice was a third felony offender for purposes of presumptive sentencing. Under the pre-March 2005 sentencing provisions, as a third felony offender, Tice faced a presumptive term of 15 years' imprisonment for each class A felony.[4]

At Tice's initial sentencing hearing, Superior Court Judge Eric Smith found that Tice had conceded one aggravating factor: that he knew or should have known that the victim of the offense was particularly vulnerable because of extreme youth.[5] The presence of the aggravating factor authorized Judge Smith to increase the 15-year presumptive term to the maximum sentence of 20 years' imprisonment.[6] Judge Smith sentenced Tice to the maximum term of 20 years for each of the felony offenses. He imposed 15 years for the first-degree assault conviction concurrently and 5 years consecutively. Therefore, Tice's composite term of imprisonment was 25 years.

In our previous decision in this appeal, we concluded that Tice had not conceded the aggravating factor that he knew or should have known that the victim of the offense was particularly vulnerable because of extreme youth.[7] We therefore remanded the case to Judge Smith for resentencing. [8]

On remand, Judge Smith again found the aggravating factor based on the evidence presented by the State, and he imposed the same composite 25-year sentence. Judge Smith stated that he was determined to impose the 25-year composite sentence as the appropriate sentence for Tice's crimes, even if this court later found that it was error to find the aggravating factor. Judge Smith stated that, as an alternative, he would impose 15 years for manslaughter and 15 years for assault in the first degree, with 10 of those years consecutive to the manslaughter sentence.

The applicability of aggravator (c)(5) to Tice's case

Alaska Statute 12.55.155(c)(5) applies when " the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill health, or extreme youth or was for any other reason substantially incapable of exercising normal physical or mental powers of resistance." As noted earlier, Tice's convictions arose out of a single car accident that killed one child and injured another. Tice argued at resentencing and now argues on appeal that the " vulnerable victim" aggravator does not apply in a case where the defendant's conduct was not aimed at a particular victim. Tice argues that the aggravator does not apply to him because he did not " exploit" or deliberately take advantage of the victims' youth.

Because Alaska case law is silent on this issue, and our review of the legislative history of AS 12.55.155(c)(5) has been unhelpful in this regard, we have looked to the history of a similar federal sentencing guideline. The federal guidelines allow increased punishment " [i]f ...


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