James H. LUCKART, Appellant,
STATE of Alaska, Appellee.
[Copyrighted Material Omitted]
Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and COATS, Senior Judge [*].
James H. Luckart stands convicted of attempted first-degree sexual assault. As we explained in our prior decision in this case— Luckart v. State, 270 P.3d 816 (Alaska App.2012)— Luckart faces a presumptive sentencing range of 25 to 35 years' imprisonment for his offense.
Luckart's sentencing judge referred his case to the statewide three-judge sentencing panel because she concluded that it would be manifestly unjust to sentence Luckart within this presumptive range. The sentencing judge concluded that the injustice arose primarily from the fact that Luckart would not be eligible to apply for early release on discretionary parole during his term of imprisonment.
See AS 33.16.090(b)(2), which declares that defendants who receive a sentence under AS 12.55.125(i)— that is, defendants who are sentenced for sexual assault or sexual abuse of a minor— " may not be released on discretionary parole until [they have] served the term imposed, less good time [awarded] under
AS 33.20.010", unless the three-judge panel orders otherwise.
When the three-judge panel first considered Luckart's case, the panel erroneously concluded that it had no authority to adjust Luckart's sentence, so the panel sent Luckart's case back to the individual sentencing judge.  In Luckart v. State, we reversed the three-judge panel's decision, and we directed the panel to reconsider Luckart's case. 270 P.3d at 820-21.
Now the three-judge panel has considered Luckart's case for a second time. The three-judge panel agreed with the sentencing judge that it would be unjust to sentence Luckart to a term of imprisonment within the applicable presumptive range of 25 to 35 years. However, the panel concluded that it had no authority to follow the sentencing judge's suggestion of granting Luckart enhanced eligibility for discretionary parole. So, instead, the panel sentenced Luckart to a term of imprisonment well below the applicable range: 25 years with 11 years suspended (14 years to serve).
Luckart now appeals this sentence.
Luckart first argues that the three-judge panel misunderstood the scope of its authority— that the panel did have the authority to grant him enhanced eligibility for discretionary parole. The State agrees with Luckart. And for the reasons explained in this opinion, we agree as well.
Luckart then argues that he should gain a double advantage from the three-judge panel's error. As we just explained, because the panel erroneously believed that it could not expand Luckart's eligibility for discretionary parole, the panel sentenced Luckart to 14 years to serve— a term of imprisonment below the low end of the presumptive range. Luckart now contends that, because the three-judge panel did not expressly restrict his eligibility for discretionary parole when it announced this 14-year sentence, Luckart should be able to apply for discretionary parole after serving one-quarter of this reduced sentence— so that, conceivably, he might be released from prison after serving as little as 3 1/2 years.
For the reasons explained in this opinion, we reject Luckart's contention about his parole eligibility. The discretionary parole statute, AS 33.16.090(b), does indeed recognize the three-judge panel's authority to grant expanded parole eligibility to certain defendants. But unless the panel expressly exercises this authority, a defendant's eligibility for discretionary parole remains governed by the rules codified in that statute. In Luckart's case, his eligibility for discretionary parole is governed by AS 33.16.090(b)(2), and he therefore is not eligible to apply for discretionary parole until he has served the 14 years, less good time credit.
A general overview of Alaska's presumptive sentencing statutes
The Alaska Legislature has enacted presumptive sentencing ranges for most of the felony offenses defined in Title 11 of the Alaska Statutes.
(Certain serious felonies defined in Title 11 are not covered by the presumptive sentencing laws; the sentencing ranges for these offenses are set forth in AS 12.55.125(a) and (b). And the presumptive sentencing laws do not apply to non classified felony offenses. By " non-classified", we mean felony offenses defined in titles other than Title 11 that the Legislature has not classified as class A, class B, or class C felony offenses.)
For felonies that are governed by the presumptive sentencing laws, the applicable presumptive range for any given offense is contained in one of four subsections of AS 12.55.125: subsection (i) (covering sexual felonies), subsection (c) (covering all other class A felonies), subsection (d) (covering all other class B felonies), and subsection (e) (covering all other class C felonies).
A fifth subsection of AS 12.55.125— subsection (g)— declares that when a defendant is sentenced under one of the these four presumptive sentencing provisions ( i.e., " [when] a defendant is sentenced under (c), (d), (e), or (i) of [AS 12.55.125]" ), the defendant's term of imprisonment can not be suspended or
otherwise reduced below the low end of the applicable presumptive range " except to the extent permitted under AS 12.55.155— 12.55.175" .
This trio of statutes— AS 12.55.155, 165, and 175— contains the rules that authorize the superior court to impose felony sentences outside the presumptive sentencing ranges specified in AS 12.55.125.
AS 12.55.155 contains a list of aggravating and mitigating circumstances which, if proved, authorize an individual sentencing judge to impose a sentence that either exceeds or falls below the applicable presumptive range. In cases where the sentencing judge concludes that, even after the adjustments allowed by AS 12.55.155, the defendant's sentence would still be manifestly unjust, AS 12.55.165 authorizes the judge to refer the defendant's case to the statewide three-judge sentencing panel.
The three-judge panel's sentencing authority is defined in AS 12.55.175. If the three-judge panel agrees with the individual sentencing judge that it would be manifestly unjust to sentence the defendant within the normal presumptive sentencing rules (even after the adjustments allowed by AS 12.55.155), the three-judge panel has the authority (with a few exceptions) " [to] sentence the defendant to any definite term of imprisonment" within the entire range of sentences established by the Legislature for that offense.
A preliminary matter: the distinction between " presumptive" sentences and " non-presumptive" sentences
Before we begin our detailed discussion of the legal issues presented in Luckart's case, we must first address a preliminary matter. Throughout their briefs to this Court, both Luckart and the State speak of two distinct types of prison sentences: " presumptive" sentences (or " presumptive" terms of imprisonment), versus " non presumptive" sentences (or " non-presumptive" terms of imprisonment).
The parties use the term " presumptive sentence" as meaning a term of imprisonment during which the defendant is not eligible to apply for discretionary parole; they use the term " non-presumptive sentence" as meaning a term of imprisonment during which the defendant is eligible to apply for discretionary parole.
This Court introduced this terminology— " presumptive sentences" and " non-presumptive sentences" — in our early decisions construing Alaska's presumptive sentencing statutes. And this distinction is a useful one when it comes to distinguishing between (1) sentences that are governed by the presumptive sentencing provisions of AS 12.55.125— 175, versus (2) sentences that are not governed by those provisions.
But the distinction between " presumptive sentences" and " non-presumptive sentences" is not as useful— indeed, it can be misleading— when the issue is a defendant's eligibility for parole. The presumptive sentencing provisions of AS 12.55.125 do not speak of parole eligibility. They neither confer nor restrict it. Instead, a defendant's eligibility for discretionary parole is governed by the provisions of AS 33.16.090.
Under AS 33.16.090(b), the question of whether, or when, a defendant becomes eligible to apply for discretionary parole does not hinge directly on whether the defendant received a " presumptive sentence" — i.e., whether the defendant's sentence was governed by the presumptive sentencing statutes, AS 12.55.125— 175. Rather, a defendant's parole eligibility hinges on several factors. These factors are:
(1) whether the defendant received a single sentence or two or more sentences;
(2) whether one or more of the defendant's sentences was imposed under AS 12.55.125(a) or (b)— that is, the defendant was sentenced for one of the unclassified felonies where sentencing is not governed by presumptive sentencing;
(3) whether the sentencing judge exercised their authority under ...