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Williams v. State

Court of Appeals of Alaska

March 30, 2018

RANDOLPH WILLIAMS, Appellant,
v.
STATE OF ALASKA, Appellee.

          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 ...


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