Appeal
from the Superior Court Trial Court No. 1 HA-12-071 CR, First
Judicial District, Haines, Keith B. Levy, Judge.
Susan
Orlansky, Reeves Amodio LLC, Anchorage, under contract with
the Public Defender Agency, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Donald
Soderstrom, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
OPINION
MANNHEIMER, JUDGE.
Randolph
Williams appeals his convictions on eight counts of
possessing child pornography.[1] The pornographic images were
discovered on an office computer at the Chilkoot Indian
Association in Haines around mid-day on November 19, 2012.
This computer was available for the use of Association
members, and Williams had used the computer earlier that day,
but he claimed that he only used the computer to check his
e-mail, and that he did not possess the pornographic images.
The jury rejected this defense and convicted Williams of the
eight counts.
In this
appeal, Williams raises three claims.
First,
Williams argues that the indictment against him should have
been dismissed because the State failed to apprise the grand
jury of evidence suggesting that Williams might have an alibi
for mid-day on November 19th. We reject this claim because
the purported "alibi" evidence merely suggested,
and did not come close to proving, that Williams was
elsewhere at the relevant times. It was the kind of evidence
that could potentially be useful to a defense attorney, but
it did not independently establish Williams's innocence.
Williams's
second appellate claim concerns the "last accessed"
file property of the pornographic images.
The
Windows operating system has the ability to keep track of the
date and time at which a computer file was last
"accessed", either by a computer user or by a
computer program. At trial, Williams's attorney pointed
out that when the Haines chief of police opened the
pornographic images on the Association's computer - to
confirm the presence of child pornography on the computer,
and to preserve this evidence by taking photographs of the
images as they were displayed on the computer monitor - he
inadvertently altered the "accessed" property of
those images. Williams's attorney further asserted that
if the pre-existing "accessed" date-and-time stamps
of the pornographic images had been preserved, those
date-and-time stamps would have shown that Williams could not
have been the person who downloaded and then deleted the
various pornographic images.
Based
on these assertions, Williams's attorney asked the trial
judge to give a Thorne instruction to the jury
regarding those "accessed" date-and-time stamps -
i. e., an instruction telling the jurors to presume
that the earlier "accessed" date-and-time stamps
would have been exculpatory if they had been
preserved.[2] The trial judge declined to give a
Thorne instruction. For the reasons explained in
this opinion, we uphold that decision.
Finally,
Williams argues that even though he has two prior felony
convictions, he should have been sentenced as a first felony
offender for his present crimes, rather than as a third
felony offender, because he was released from supervision for
his most recent prior felony more than ten years ago.
See AS 12.55.145(a). As we explain in this opinion,
we agree with Williams, and we direct the superior court to
re-sentence him.
Normally,
we would address a defendant's attacks on their
convictions before we addressed the defendant's attack on
their sentence. But in Williams's case, our resolution of
his sentencing issue has substantial importance for all
defendants who are sentenced for a sexual felony under AS
12.55.125(i). This is why we are publishing our decision in
this case - and it is why we address the sentencing issue
first, even before we describe the underlying facts of
Williams's case.
The
question of how many prior felonies Williams had for purposes
of presumptive sentencing
A jury
found Williams guilty of eight counts of possessing child
pornography. This offense is a class C felony, [3] but because it is
a sexual felony, sentencing for this offense is not governed
by AS 12.55.125(e) (the sentencing provisions that normally
apply to class C felonies). Rather, sentencing for this
offense is governed by the sexual felony provisions of AS
12.55.125(i)(4).
Under
AS 12.55.125(i)(4), the presumptive sentencing range for a
class C sexual felony depends on two factors: (1) how many
prior felonies the defendant has, and (2) whether those prior
felonies are sexual felonies or non-sexual
felonies.[4]
Williams
had two prior felonies, but neither of them was a sexual
felony. He had a burglary conviction from 1992, and he had a
forgery conviction from 1994. Because these prior felonies
were so old, a question arose at Williams's sentencing as
to whether he should be treated as a third felony offender
or, instead, only a first felony offender.
AS
12.55.145(a) is the statute that governs how prior offenses
are counted for purposes of presumptive sentencing. One
provision of this statute, subsection (a)(1)(A), declares
that:
• a prior conviction for an unclassified or a class A
felony is always counted as a "prior felony
conviction" for presumptive sentencing purposes, but
• prior convictions for class B or class C felonies are
not counted if the defendant was unconditionally
released from supervision for their most recent felony ten
years or more before the defendant committed their present
offense.
(In general, see Gilley v. State, 955 P.2d 927
(Alaska App. 1998), where this Court interpreted this
statute.)
As we
have explained, Williams had a burglary conviction from 1992
and a forgery conviction from 1994. These are class B and
class C felonies - and although the record does not contain
Williams's exact dates of discharge from supervision for
these felonies, the State does not dispute that Williams was
discharged from supervision at least ten years before the
date of his current offense (November 19, 2012).
Based
on this, Williams's attorney argued that Williams should
be treated as a first felony offender for purposes of his
current sentencing. But the superior court concluded that,
despite the ten-year "expiration" provision of AS
12.55.145(a)(1)(A), Williams should be treated as a third
felony offender. The superior court reached this conclusion
because another subsection of AS 12.55.145(a) - subsection
(a)(4) - contains a separate set of rules for defendants who
are being sentenced for sexual felonies under AS
12.55.125(i).
Subsection
(a)(4) does not contain an "expiration" provision
like the one contained in subsection (a)(1)(A). Because of
this, the superior court concluded that a defendant's old
felonies never "expire" - i.e., they
always count - if the defendant is being sentenced for a
sexual felony.
For the
reasons we are about to explain, we disagree with the
superior court's interpretation of AS 12.55.145(a).
Originally,
AS 12.55.145(a) had only one set of rules for counting
"prior convictions" - the set of rules that is now
codified in subsection (a)(1) of the statute.
The
first of these rules is subsection (a)(1)(A) - the
"expiration" rule that we have been discussing. The
next rule is subsection (a)(1)(B) - the rule that defines
when an out-of-state conviction counts as a "prior
felony conviction". And the third rule is subsection
(a)(1)(C) - the rule that defines when two or more
convictions arising from a continuous criminal episode should
only be counted as one prior conviction.
In
1996, the Alaska Legislature enacted new sentencing rules for
habitual felony offenders; see AS 12.55.125(1).[5] These new rules
for habitual offenders hinge on a subset of the
defendant's prior felony convictions - specifically, the
number of the defendant's prior convictions for
"most serious felonies". Accordingly, the
legislature added a new subsection to AS 12.55.145(a) -
subsection (a)(2) - that defines the rules for ascertaining
the number of a defendant's "most serious
felonies". See SLA 1996, ch. 7, § 8.
In
1998, the Alaska Legislature enacted new minimum sentences
for misdemeanor assault involving domestic
violence.[6] These minimum sentences hinge on a
defendant's number of previous convictions for "a
crime against a person" or "a crime involving
domestic violence". Because the legislature wanted to
use a shorter, five-year "expiration date" for
these prior offenses, the legislature added a new subsection
to AS 12.55.145(a) - subsection (a)(3) - to codify the
five-year expiration rule for this category of crimes.
See SLA 1998, ch. 86, § 10.
And in
2003, the Alaska Legislature enacted new presumptive
sentencing ranges for sexual felonies.[7] These new
presumptive ranges hinge not only on a defendant's number
of prior "felonies" but also on a defendant's
number of prior "sexual felonies". Because of this,
the legislature added a new subsection to AS 12.55.145(a) -
subsection (a)(4) - that contains rules for ascertaining the
number of a defendant's "sexual felonies".
See SLA 2003, ch. 90, § 6.
At the
same time, the legislature amended the introductory wording
of subsection (a)(1) (the subsection containing the original
set of rules) to say that the rules set forth in subsection
(a)(1) apply when a defendant is being sentenced under
"AS 12.55.125(c), (d), or (e)" - in other words,
when the defendant is being sentenced for any class A, class
B, or class C felony other than a sexual felony.
Thus,
AS 12.55.145(a) seemingly has two different sets of rules for
determining the number of a defendant's prior
convictions: the rules contained in subsection (a)(1) that
apply when a defendant is being sentenced for a
non-sexual class A, class B, or class C felony, and
the rules contained in subsection (a)(4) that apply when a
defendant is being sentenced for a sexual felony.
The
"sexual felony" subsection, (a)(4), does not
contain a provision that mirrors the ten-year
"expiration" provision of subsection (a)(1)(A).
Based
on this, the superior court in Williams's case concluded
- and the State now argues - that there is no expiration
provision for offenders who are being sentenced for a sexual
felony. In other words, the State contends that all of the
defendant's prior class B and class C felony convictions
count, regardless of how long ago the defendant was released
from supervision for those felonies.
But the
"expiration" rule is not the only provision that is
missing from the "sexual felony" provisions set
forth in subsection (a)(4). Here is the text of subsection
(a)(4):
[When a defendant is being sentenced for a sexual felony
under] AS 12.55.125(i),
(A) a conviction in this or another jurisdiction of an
offense having elements similar to those of a sexual felony
is a prior conviction for a sexual felony;
(B) a felony conviction in another jurisdiction making it a
crime to commit any lewd and lascivious act upon a child
under the age of 16 years, with the intent of arousing,
appealing to, or gratifying the sexual desires of the
defendant or the victim is a prior conviction for a sexual
felony; [and]
(C) two or more convictions arising out of a single,
continuous criminal episode during which there was no
substantial change in the nature of the criminal objective
are considered a single conviction unless the defendant was
sentenced to consecutive sentences for the crimes; offenses
committed while attempting to escape or avoid detection or
apprehension after the commission of another offense are not
part of the same criminal episode or objective.
These
provisions define what counts as a prior "sexual
felony". But these provisions do not define what counts
as a "prior felony" in the broader sense -
i.e., in the sense of "all prior felonies,
including non-sexual felonies".
This is
a significant omission - because, as we have explained, the
presumptive sentencing ranges for sexual felonies hinge on
both the number of a defendant's prior sexual felonies
and the number of a defendant's prior non-sexual
felonies. To ascertain the applicable presumptive sentencing
range in a given case, the sentencing court must know both of
these numbers.
Subsection
(a)(4) does not contain an "expiration" provision
for class B and class C felonies. But neither does it contain
a provision that allows a court to count a defendant's
out-of-state felony convictions (unless those convictions are
for "lewd and lascivious act[s] upon a child under the
age of 16 years").
Thus,
if we were to adopt the position advocated by the State - the
position that subsections (a)(1) and (a)(4) are mutually
exclusive, and that the rules contained in subsection (a)(1)
do not apply when a defendant is being sentenced for a sexual
felony - then a defendant's out-of-state felonies would
not be counted.
We
conclude that the more reasonable interpretation of AS
12.55.145(a) is to read subsections (a)(1) and (a)(4)
together, as complementary provisions that provide the rules
for ascertaining the total number of a defendant's prior
felony convictions and, from among this total, the number of
a defendant's prior sexual felony convictions.
This
interpretation is supported by the history of the statute
itself.
As we
explained, when AS 12.55.145(a) was originally enacted, a
sentencing court had to count the number of a defendant's
prior felony convictions, and the statute contained the rules
for doing that. When the legislature created a new category,
"most serious felony", for the sentencing of
habitual offenders, the statute was amended by adding a new
subsection that contained the rules a court was to follow
when calculating the number of a defendant's prior
"most serious felonies". And when the legislature
created yet another new category, "sexual felony",
to be used in the sentencing of sexual felony offenders, the
statute was again amended by adding a new subsection that
contained the rules a court was to follow when calculating
the number of a defendant's prior "sexual
felonies".
But
these new categories of felony were not intended to supplant
the original definition of "prior felony". Indeed,
as we have explained, when a court sentences a defendant for
a sexual felony, the court must know both the number
of a defendant's prior felonies and the number
of a defendant's prior sexual felonies. We therefore
conclude that the rules contained in subsection (a)(4) of the
statute were intended to supplement, rather than replace, the
rules contained in subsection (a)(1).
In
other words, subsection (a)(1) of the statute provides the
baseline rules for counting the number of a defendant's
qualifying prior felony convictions, and subsection (a)(4)
provides the rules for ...