joined by Judge BOLGER, concurring.
Under Alaska's presumptive sentence ing laws, a sentencing judge must impose a sentence within the applicable presumptive sentencing range unless the judge is authorized to go outside the sentencing range pursuant to AS 12.55.155(a). This statute authorizes a judge to impose a sentence above the presumptive range if the judge finds one or more of the aggravating factors listed in AS 12.55.155(c), or to impose a sentence below the presumptive range if the judge finds one or more of the mitigating factors listed in AS 12.55.155(d).
There are times when a sentencing judge may conclude that the normal range of sentences should be adjusted because of an aggravating or mitigating factor that is not among those listed in AS 12.55.155. An individual sentencing judge has no authority to relax the rules of presumptive sentencing based on a factor that is not listed in AS 12.55.155(0)-(d).1 Accordingly, in these circumstances-i.¢., when the judge finds that manifest injustice would result from failure to consider a relevant non-statutory aggravating or mitigating factor-AS 12.55.165(a) directs the sentencing judge to send the case to the statewide three-judge sentencing panel.
One of this Court's primary tasks in the current appeal is to identify the three-judge panel's duty in these cases. The pertinent statute, AS 12.55.175(b) describes the panel's duty in the following manner:
If the panel finds that manifest injustice would result from failure to consider relevant aggravating or mitigating factors not specifically included in AS 12.55.155 ..., [the panel] shall sentence the defendant in accordance with this section. If the panel does not find that manifest injustice would result, it shall remand the case to the sentencing court, with a written statement of its findings and conclusions, for sentence-ing under [the normal rules of presumptive sentencing].
Under this statute, the three-judge panel's duty in the case hinges on whether it would be manifestly unjust to "[faill to consider" relevant non-statutory aggravating or mitigating factors. There are conceivably two ways to interpret this statutory directive.
Because an individual sentencing judge is not authorized to exceed the normal limits of presumptive sentencing based on a non-statutory sentencing factor, one might interpret AS 12.55.175(b) as requiring the three-judge panel to retain the case, and to impose the defendant's sentence, whenever the panel concludes that it would be manifestly unjust to fail to take account of a non-statutory sentencing factor when formulating the defendant's sentence-even if the panel ultimately concludes that the defendant should receive a sentence within the range of sentences that was available to the individual sentencing judge.
But in Smith v. State, 711 P.2d 561 (Alaska App.1985), this Court gave a different interpretation to the statutory directive found in AS 12.55.175(b). This interpretation is hidden in footnote 8 of Smith, 711 P.2d at 572. Here is the text of that footnote:
Individual sentencing judges will be completely precluded from considering relevant non-statutory aggravating or mitigating factors[,] and from making adjustments to a presumptive term in light of such factors[,] only in cases where no statutory factors can be proved. Thus, the need to refer a case to the three-judge panel to consider non-statutory aggravating or mitigating factors will ordinarily arise only in cases where no statutory aggravating or mitigating factors can be established. Conversely, where a statutory aggravating or mitigating factor is established, no need for referral to the three-judge panel will usually exist. This is because, upon proof of a statutory factor, the individual sentencing judge will be authorized to adjust the presumptive term. In making adjustments, the judge does not view the statutory factor in isolation, but is required to consider the totality of the cireumstances in the case in light of the sentencing goals stated in State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). See *1051Juneby v. State, 641 P.2d 823, 843 (Alaska App.1982), modified on other grounds, ... 665 P.2d 830 (Alaska App.1983). Thus, when a statutory aggravating or mitigating factor has been established, the individual sentencing judge, [when] applying the Chaney criteria to determine the amount by which the presumptive term should be adjusted, will be able to take into account the totality of the cireumstances, including any non-statutory aggravating or mitigating factors.
This footnote makes for fairly dense reading, but I would paraphrase it in the following way:
(1) Even though individual sentene-ing judges are not allowed to deviate from the applicable presumptive range based on a non-statutory sentencing factor, individual sentencing judges retain the authority to consider non-statutory factors when they decide what sentence to impose within the range allowed to them-because, almost by definition, any non-statutory sentencing factor will be relevant to one or more of the Chaney sentencing criteria (i.e., the sentencing goals that judges are required to consider when determining a defendant's sentence).
(2) Because individual sentencing judges are allowed to consider non-statutory sentencing factors when deciding what sentence to impose within the range of sentences allowed to them under the presumptive sentencing laws, AS 12.55.175(b) must be interpreted in light of this fact. Consequently, when AS 12.55.175(b) speaks of cases where manifest injustice would result from "failure to consider" a non-statutory sentencing factor, the statute is really referring only to those cases where manifest injustice would result from failure to adjust the otherwise available sentencing range because of a non-statutory sentencing factor.
(8) Thus, whenever the three-judge panel concludes that, even after taking the non-statutory sentencing factor into account, the defendant should still receive a sentence within the range of sentences that was already available to the individual sentencing judge, the panel's conclusion is equivalent to a finding that it would not be manifestly unjust to "fail to consider" the non-statutory sentencing factor. The case is therefore governed by the final sentence of AS 12.55.175(b), which directs the three-judge panel to "remand the case to the sentencing court, with a written statement of its findings and conclusions, for sentencing under [the normal rules of presumptive sentencing]."
In Garner's case, the three-judge panel considered the non-statutory mitigating factor (Garner's extraordinary potential for rehabilitation), but the panel nevertheless concluded that it would not be manifestly unjust to sentence Garner to a term of imprisonment within the range of sentences already available to the individual sentencing judge. The panel therefore acted properly when they declined to sentence Garner and, instead, sent the case back to the individual sentencing judge.
Order
In a petition for rehearing, Garner points out that in our decision in this case, we did not address an issue which he raised in his original briefing: whether the three-judge panel was clearly mistaken in refusing to accept jurisdiction and sentence Garner to less than the presumptive term based upon his extraordinary exceptional prospects for rehabilitation.1 We grant the petition for rehearing.
A majority of the three-judge panel concluded that Garner had extraordinary prospects for rehabilitation. [Exe. 75; Tr. 174] The panel emphasized that Garner had shown that he was truly remorseful for his actions and that he fully cooperated with the police. [Tr. 174] In addition, Garner had acknowledged his problem with alcohol abuse and attempted to get whatever treatment was available for him. [ID.]
Nonetheless, the panel concluded that imposition of the presumptive term in this case would not be manifestly unjust. [ID. at 175] The panel noted that Garner had a very high blood alcohol level at the time of the incident and he apparently had a history of alcohol *1052abuse. He had a prior conviction for driving under the influence.
In particular, the panel emphasized the specific facts in this case. Garner ran over a helpless person. The panel concluded that a sober person in Garner's situation should have seen the victim, Catherine Absoak, lying in the center of the road. In addition, the panel pointed out that even if a sober person had seen Ahsoak, a sober person would have stopped to investigate. A sober person would have known that he ran over someone. The panel reasoned that, had Garner been sober, he could have helped Ahsoak, perhaps saving her life. The panel stated that, in spite Garner's exceptional prospects for rehabilitation, his background coupled with the facts of the homicide led it to conclude that the seven-year presumptive term was not manifestly unjust. [ID. at 175-76]
The findings of the three-judge panel are supported by the record and support the panel's decision that the seven-year presumptive term was not manifestly unjust. We accordingly conclude that the three-judge panel's decision was not clearly mistaken.2
. See Woods v. State, 667 P.2d 184, 187 (Alaska 1983).
. Garner v. State, Opinion Number 2338, 2011 WL 5904470 (Alaska App. November 25, 2011).
. Lowe v. State, 866 P.2d 1320, 1322 (Alaska App. 1994).