TIMOTHY E. MUND, Appellant,
STATE OF ALASKA, Appellee
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Trial Court No. 3AN-08-9600 CR.
John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Mary Gilson, 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[*]. Judge COATS, concurring.
Timothy E. Mund was convicted of several crimes, the most serious of which was first-degree assault. In our previous opinion in this case, Mund v. State, Alaska App. Memorandum Opinion No. 5914, 2013 WL 466421 (February 6, 2013), we affirmed Mund's convictions, but we left one issue undecided: Mund's claim that his composite sentence of 20 years to serve was excessive.
Because of Mund's many prior felony convictions, he was a " third felony offender" for presumptive sentencing purposes, and he therefore faced a presumptive range of 15 to 20 years' imprisonment for his first-degree assault conviction.
The superior court sentenced Mund to serve 18 years for this crime, and the court added a total of 2 more years to serve for Mund's other offenses. Thus, Mund's composite sentence -- 20 years to serve -- falls within the applicable presumptive sentencing range for his most serious offense.
One portion of Alaska's sentence appeal statute, AS 12.55.120(a), declares that felony defendants who receive more than 2 years to serve have the right to appeal their sentence, unless that term of imprisonment was an agreed-upon provision of a plea bargain. But in 2005, the Legislature enacted another subsection, AS 12.55.120(e), which limits this right of appeal. Subsection (e) declares that " [if a] sentence [is] within an applicable presumptive range[, the sentence] may not be appealed to the court of appeals ... on the ground that the sentence is excessive."
The enactment of this new subsection (e) also affected this Court's jurisdiction to hear felony sentence appeals, because the pertinent portion of our jurisdictional statute -- AS 22.07.020(b) -- contains a cross-reference to the provisions of AS 12.55.120. Our jurisdictional statute declares that we have the authority to review felony sentences exceeding two years to serve " except as limited in AS 12.55.120" . Because of this cross-reference, we lack jurisdiction to hear the appeal of any sentence if that appeal is not authorized by the provisions of AS 12.55.120.
Thus, because of the enactment of AS 12.55.120(e), Mund apparently has no right to appeal his sentence, and this Court apparently has no jurisdiction to review his sentence. But this new restriction on the right of sentence appeal, and this new restriction on our jurisdiction to hear sentence appeals, conflict with the provisions of Alaska Appellate Rule 215(a) enacted by the Alaska Supreme Court.
Subsection (a)(1) of Appellate Rule 215 tracks the language of AS 12.55.120(a). Rule 215(a)(1) declares that felony defendants have the right to appeal any sentence longer than 2 years to serve (unless the defendant's term of imprisonment was an agreed-upon provision of a plea bargain). This right of appeal applies even when a defendant's sentence is within the applicable presumptive range. And subsection (a)(4) of Rule 215 declares that these sentence appeals " must be taken to the court of appeals" .
Because of this conflict between the statutes and the court rule, we asked the parties to brief the questions of (1) Mund's right to appeal his sentence, and (2) this Court's authority to review Mund's sentence for excessiveness. Here, in a nutshell, are our conclusions:
AS 12.55.120(e) ostensibly changed Alaska law in three ways. First, the statute eliminated the right of sentence appeal for defendants who receive sentences within the applicable presumptive range. Second, the statute apparently eliminated this Court's jurisdiction to hear such appeals -- because our sentence appeal jurisdiction statute, AS 22.07.020(b), defines our jurisdiction according to which defendants have a right of appeal under AS 12.55.120. And third, AS 12.55.120(e) expressly recognized the right of these defendants to seek discretionary review of their sentences by filing a petition either in the supreme court or in this Court. (The Legislature left this choice up to the supreme court.)
The Legislature has sole authority to define this Court's jurisdiction. Thus, to the extent Appellate Rule 215(a) purports to give this Court jurisdiction over sentence appeals when the Legislature has taken that authority away, the court rule has no legal effect. The Alaska Supreme Court can not grant this Court additional jurisdiction by court rule.
But on the question of which defendants have a right to appeal their sentence, Appellate Rule 215(a) takes precedence over any conflicting statute. Thus, in order for the Legislature to eliminate the right of sentence appeal for defendants whose sentence is within the applicable presumptive range, the Legislature had to exercise its authority under Article IV, Section 15 of the Alaska Constitution to amend Appellate Rule 215(a) to incorporate this new restriction on the right of sentence appeal. The Legislature neglected to do that, so the broader right of sentence appeal codified in Appellate Rule 215(a) continues to govern. Felony defendants who receive a sentence within the applicable presumptive range continue to have the right to appeal their sentence, as long as their sentence exceeds two years to serve and their sentence was not an agreed-upon provision of a plea bargain.
This leaves us in a quandary: Given the fact that the Legislature failed to achieve its goal of eliminating these defendants' right of sentence appeal, would the Legislature still wish to deprive this Court of jurisdiction to hear these sentence appeals -- a result which would send these appeals to the supreme court?
(See AS 22.05.010(b), which declares that when litigants have a right of appeal, that appeal is " to the supreme court [as] a matter of right ... in [all] actions and proceedings from which there is no right of appeal to the court of appeals under AS 22.07.020[.]" )
We have examined the legislative history of AS 12.55.120(e), and we conclude that the Legislature would not wish to limit this Court's sentence appeal jurisdiction unless, at the same time, the restriction on the right of sentence appeal codified in AS 12.55.120(e) also took effect -- i.e., unless defendants who received sentences within the applicable presumptive range were deprived of the right to appeal their sentences.
We therefore conclude that no provision of AS 12.55.120(e) should be given effect. Because the Legislature failed to amend Appellate Rule 215, defendants ostensibly covered
by AS 12.55.120(e) retain their pre-existing right to appeal their sentences, and this Court retains its jurisdiction to hear those appeals.
We will now explain our analysis in much greater detail. Readers who are already convinced that we have correctly described Alaska law, and that we have accurately discerned the intent of AS 12.55.120(e), may proceed directly to the final section of this opinion, where we analyze whether Mund's composite sentence of 20 years' imprisonment is excessive.
The legal background of this controversy, part 1: principles of sentence review under Alaska law
In 1968, in Bear v. State,  the Alaska Supreme Court held that it did not have the authority to review a lawfully imposed sentence to determine whether it was excessive or overly lenient. In response, the Alaska Legislature took action the following year to authorize sentence appeals. See SLA 1969, ch. 117, § § 1 and 4.
In section 1 of this 1969 session law, the Legislature amended the supreme court's jurisdictional statute by adding a provision that expressly authorized the court to review criminal sentences. See AS 22.05.010(b) (1969 version). And in section 4 of the session law, the Legislature enacted the original version of AS 12.55.120 -- a statute giving certain criminal defendants the right to appeal their sentence.
As originally enacted, AS 12.55.120(a) declared that a defendant could appeal any sentence that exceeded one year's imprisonment. But seven years later, in 1976, the supreme court enacted a court rule, Appellate Rule 21(a), which defined the right of sentence appeal in a manner inconsistent with the statute. Appellate Rule 21(a) declared that defendants had the right to appeal any sentence of 45 days or more.
In Wharton v. State, 590 P.2d 427 (Alaska 1979), the supreme court held that the appellate rule took precedence over the sentence appeal statute. The court gave two discrete reasons for its decision.
First, the court asserted that the Bear decision was wrong -- that the supreme court, in fact, possessed the inherent power to review criminal sentences, because Article IV, Section 2 of the Alaska Constitution declares that the supreme court has " final appellate jurisdiction" in all judicial proceedings. Id. at 428-29.
Second, the supreme court reasoned that, once the Legislature granted defendants a right of sentence appeal (albeit a limited right), the court had the authority to " expand that right" by court rule. Id. at 429.
In Coffman v. State, 172 P.3d 804 (Alaska App. 2007), this Court was required to revisit and interpret the supreme court's decision in Wharton. We concluded that Wharton stood for two fundamental propositions.
First, we declared that the Wharton decision " rests on the concept ... that, even in the absence of authorizing legislation, the supreme court has the power to review any judicial decision made in a criminal case -- including the sentencing judge's exercise of sentencing discretion" :
[E]ven though the Alaska statutes governing sentence appeals were originally thought to confer a special right of appeal (and to expand the supreme court's jurisdiction accordingly), a defendant's substantive right to seek appellate review of a sentence for alleged excessiveness, and the supreme court's authority to hear that claim, actually exist irrespective of these statutes.
Coffman, 172 P.3d at 809 (emphasis in the original).
Second, we declared that, because the supreme court has the inherent power to review criminal sentences, even in the absence of legislation, Alaska's sentence appeal statutes " are in fact addressed solely to matters of procedure -- or, in the case of the [jurisdictional] provisions found in AS 22.07, the issue of the division of appellate jurisdiction between this Court and the supreme court." Id. at 809. We explained:
[T]he truth of the matter is that every defendant in Alaska has the right to seek appellate review of their sentence on the ground that it is excessive. The effect of our sentence appeal statutes is not to confer or withhold this right, but rather to define the manner in which the appellate review is invoked and conducted.
Ibid. (emphasis in the original).
By " the manner in which appellate review is invoked and conducted", we were referring to the two main components of sentence review law.
The first of these components is jurisdictional: identifying the appellate court that is authorized to review the sentence.
In Wharton, the supreme court declared that it had the inherent authority to review criminal sentences, stemming from its constitutional role as the final appellate tribunal under Article IV, Section 2. But this Court has no such inherent power: our existence does not derive from the Alaska Constitution, but rather from an act of the Legislature.
Because we are a creature of statute, our jurisdiction is defined by statute -- in particular, the provisions of AS 22.07.020. The Legislature has the power to restrict this Court's authority to review sentences, either by limiting our review to specific types of cases or sentences, or by excluding specific types of cases or sentences from our review.
The second component of sentence review law is procedural: the rules that specify whether a particular class or group of defendants has the right to " appeal" their sentence or, instead, only the right to " petition" an appellate court to review their sentence.
The right of " appeal" means the right to require an appellate court to review the sentencing court's decision. The right of " petition", on the other hand, means the right to request an appellate court to review the sentencing decision -- a request which the appellate court may grant or deny as it sees fit. Se ...