Edward A. WOOLEY, Appellant,
STATE of Alaska, Appellee.
Colleen A. Libbey, Libbey Law Offices, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
In this appeal, we are asked to clarify what the legislature meant when they provided, in AS 11.46.130(a)(6), that a theft of property valued at between $50 and $500 would be enhanced by one degree-from third-degree theft to second-degree theft-if, within the preceding five years, the defendant has been convicted and sentenced for first-, second-, or third-degree theft " on two or more separate occasions" .
For the reasons explained in this opinion, we conclude that this statutory language should be interpreted as codifying the rule set forth in State v. Carlson, 560 P.2d 26, 29-30 (Alaska 1977), for identifying habitual offenders under Alaska's former criminal code-the same rule that is currently codified in AS 12.55.145(a)(2)(B) for identifying those repeat defendants who are subject to increased penalties under AS 12.55.125( l ).
Specifically, we interpret AS 11.46.130(a)(6) to mean that a theft which would normally be of the third degree will be enhanced to a theft of the second degree if, within the preceding five years, the defendant was convicted and sentenced for one theft, then committed another theft and was convicted and sentenced for it, and then committed the current theft.
The underlying facts and procedural background of this case
On February 12, 2002, Edward A. Wooley stole a jigsaw from a hardware store in Eagle
River. Because this saw was valued at slightly less than $300, Wooley's crime would normally have been a misdemeanor: third-degree theft under AS 11.46.140(a)(1). However, Wooley had prior convictions for theft. In particular, on March 28, 1997-that is, within the five years preceding his theft of the jigsaw-Wooley was sentenced for two separate thefts. (One of these thefts was committed in September 1996, and the other was committed in November 1996, but the judgements for both of these thefts were entered on the same day: March 28, 1997.)
In addition to the theft of the jigsaw, Wooley also faced charges stemming from another attempted theft and from an alleged act of witness tampering. To resolve all of these charges, Wooley entered into a plea agreement with the State. Under the terms of this bargain, the State dropped the attempted theft and the witness tampering charges, and Wooley pleaded guilty to second -degree theft (a felony) under AS 11.46.130(a)(6).
Under this statute, a theft of property valued at between $50 and $500-that is, a theft that would normally be a misdemeanor-becomes a class C felony " [if] within the preceding five years the [defendant] has been convicted and sentenced on two or more separate occasions" for first-, second-, or third-degree theft. As part of his plea bargain, Wooley stipulated that the two thefts he committed in 1996 were the predicate thefts that would support a felony charge under this statute.
However, in February 2004, Wooley (now represented by a new attorney) filed a petition for post-conviction relief in which he argued that his sentence was illegal and that his former attorney represented him incompetently. Specifically, Wooley argued that his attorney failed to see that, as a matter of law, Wooley's two prior theft convictions were too old to support a felony theft charge under AS 11.46.130(a)(6).
As we explained above, judgement was entered against Wooley for these two thefts on March 28, 1997-within the five years preceding his theft of the jigsaw on February 12, 2002. But Wooley argued that the date of his sentencing was not the determinative date for purposes of the statute. Instead, Wooley argued, the crucial date was the date on which the defendant was found to be factually guilty of the prior theft-either the date on which the jury returned its guilty verdict, or the date on which the defendant entered a guilty plea.
The superior court rejected this argument and denied Wooley's petition for post-conviction relief. Wooley then appealed to this Court.
In our previous decision in this case, Wooley v. State, 157 P.3d 1064 (Alaska App.2007), we held that, for purposes of the five-year period specified in AS 11.46.130(a)(6), a defendant is " convicted and sentenced" on the day that the court enters judgement against the defendant-as opposed to the day on which a jury finds the defendant guilty, or the day on which the defendant enters a guilty plea to the charge. We therefore concluded that even though Wooley pleaded guilty to the two prior thefts in December 1996 and in January 1997 (two dates outside the five-year statutory period), the date that mattered was the date on which judgement was entered against Wooley on these two theft convictions. That date was March 28, 1997-a date within the five-year period.
Following our decision of this point, Wooley petitioned the Alaska Supreme Court to hear his case. The supreme court granted hearing and directed us to consider one further issue in Wooley's case.
As we explained earlier in this opinion, AS 11.46.130(a)(6) applies to cases where the defendant has previously been convicted and sentenced for first-, second-, or third-degree theft " on two or more separate occasions" within the five years preceding the defendant's commission of the current theft. Because the judgements for both of Wooley's prior thefts were entered on the same day (March 28, 1997), the supreme court asked us to decide whether Wooley had been convicted and sentenced for theft " on two or more separate occasions" within the meaning of AS 11.46.130(a)(6).
The legal background of this case: the competing rules of interpretation adopted in State v. Carlson and State v. Rastopsoff
Legislatures often enact higher penalties for repeat criminal offenders-for example,
by making a repeat offense a higher degree of crime, or by providing an increased mandatory minimum penalty for a repeat offense. But these statutes sometimes fail to precisely define which defendants qualify as repeat offenders.
Thirty years ago, the Alaska Supreme Court faced this problem in State v. Carlson,560 P.2d 26 (Alaska 1977). The issue in Carlson was how to interpret the " habitual criminal" statute that was part of Alaska's pre-1980 criminal code. This statute, former AS 12.55.050, established a system of progressively greater penalties for ...