Tuttle v. State

OPINION ON REHEARING

The State asks us to reconsider a portion of our decision in this case: our conclusion that the sentencing judge applied the wrong standard of proof when he found that Tuttle carried a firearm during the robbery — a finding that subjected Tuttle to a 7-year presumptive term rather than a 5-year presumptive term under AS 12.55.125(c).

As described in our prior decision (Tuttle v. State, 65 P.3d 884 (2002)), Tuttle’s sentencing judge declared that he was applying the “preponderance of the evidence” standard of proof when he found that Tuttle carried a firearm during the robbery. But we had previously ruled in Huf v. State, 675 P.2d 268 (Alaska App.1984), that the applicable standard of proof was “beyond a reasonable doubt”.

Huf addressed a legal issue that was not expressly answered in our sentencing statutes: What burden of proof applies when the State alleges that the defendant faces a presumptive term, or a more severe presumptive term, based on the circumstances of the offense rather than the number of the defendant’s prior felony convictions?

In most instances, the applicable presumptive term for any given felony is determined solely by the number of the defendant’s prior felony convictions. The legislature has declared that “prior convictions not expressly admitted by the defendant must be proved by authenticated copies of court records”. See AS 12.55.145(b). And if, after the State produces these court records, the defendant still disputes a prior felony conviction (by asserting, for example, that he is not the person named in the court records), the State must prove the prior conviction beyond a reasonable doubt. See AS 12.55.145(d).

But though the legislature specified “beyond a reasonable doubt” as the standard for proving a defendant’s prior felony convictions, the legislature did not expressly specify the burden of proof that sentencing courts should apply when the determination of the presumptive term rests on other factual issues — such as the defendant’s possession of a firearm during the offense. In Huf, we reasoned that the legislature must have intended to have sentencing courts apply the same standard of proof — “beyond a reasonable doubt” — in these situations, too. Huf, 675 P.2d at 273-74.

The State, in its petition for rehearing, points out that Huf appears to have been superseded by AS 12.55.025(i), a statute that was enacted in 1992. This statute reads:

Except as provided by AS 12.55.125(a)(3)
[specifying an increased sentence for first-degree murder if the State proves by “clear and convincing evidence” that the defendant subjected the victim to substantial physical torture],
12.55.125(k)
[authorizing a court to sentence a first felony offender to a term of imprisonment exceeding the presumptive term for second felony offenders if the State proves aggravating factors or extraordinary circumstances by “clear and convincing evidence”],
12.55.145(d)
[specifying “beyond a reasonable doubt” as the standard of proof that the State must meet when a defendant contests a prior felony conviction],
12.55.155©
*889[specifying that aggravating and mitigating factors must be proved by “clear and convincing evidence”],
and 12.55.165
[specifying that the grounds for referring a defendant’s case to the statewide three-judge sentencing panel must be proved by “clear and convincing evidence”],
the preponderance of the evidence standard of proof applies to sentencing proceedings.

The State notes that, in Tuttle’s case, the sentencing judge was required to resolve a factual issue under AS 12.55.125(c). Specifically, the judge had to determine whether Tuttle’s presumptive term was governed by subsection 125(e)(1) (stating that 5 years is the normal presumptive term for a first felony offender convicted of a class A felony) or, instead, by subsection 125(c)(2)(A) (stating that when a first felony offender is convicted of a class A felony other than manslaughter, and the defendant possessed a firearm during the offense, the presumptive term is 7 years).

AS 12.55.125(c) is not one of the statutes listed in AS 12.55.025® as being an exception to the normal rule that sentencing issues are governed by the “preponderance of the evidence” standard of proof. Accordingly, the State contends that our decision in Huf has been superseded by this statute, and thus Tuttle’s sentencing judge was correct when he decided the firearm possession issue by a preponderance of the evidence.

If Alaska followed the “plain meaning” rule of statutory interpretation, the State would have an open-and-shut case. AS 12.55.025® purports to list all of the exceptions to the “preponderance of the evidence” standard of proof, and AS 12.55.125(e) is not among those exceptions. But Alaska does not follow the “plain meaning” rule. Thus, even when a statute is “absolute and unambiguous” on its face,

the plain language of [the statute] does not itself end the inquiry. Under Alaska’s sliding-scale approach to statutory construction, strong legislative history may support a different meaning [ — although when a] statute’s meaning appears clear and unambiguous, the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent.

Wold v. Progressive Preferred Insurance Co., 52 P.3d 155,161 (Alaska 2002) (footnotes and internal quotations omitted).

For the reasons explained here, we conclude that the legislative history of AS 12.55.025® demonstrates that the legislature did not intend to overrule our decision in Huf — that, in fact, when the legislature enacted AS 12.55.025®, the legislature intended to codify Alaska’s then-current law (both statutes and court decisions) defining the various burdens of proof at sentencing.

AS 12.55.025® was introduced as 1992 House Bill 396. There is no mention of Huf in the legislative discussions of this bill. Instead, the minutes of these legislative discussions reveal that House Bill 396 was written by the Department of Law for the purpose of having the legislature overturn a sentencing decision that this Court had issued the year before: Buoy v. State, 818 P.2d 1165 (Alaska App.1991).

Our decision in Buoy was a follow-up to our decisions in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), and Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.1983). In Austin and Brezenoff, we held that a first felony offender should receive a more favorable sentence than the presumptive term mandated for second felony offenders convicted of the same offense, unless the State proved aggravating factors under AS 12.55.155(c) or extraordinary circumstances under AS 12.55.165.

In Buoy, we were required to decide what standard of proof should apply when the State sought a higher sentence for a first felony offender by alleging aggravators or extraordinary circumstances. As was true in Huf, there was no statute governing this issue, but there were statutes that governed related issues.

In AS 12.55.155(f), the legislature had declared that the “clear and convincing evidence” standard governed the proof of ag-gravators and mitigators when a defendant is *890subject to presumptive sentencing. Similarly, in AS 12.55.165, the legislature had declared that the “clear and convincing evidence” standard governed the proof of non-statutory aggravators and mitigators, as well as extraordinary circumstances, for the purpose of determining whether a defendant’s case should be sent to the statewide three-judge sentencing panel. Using these two statutes as guides, this Court concluded that this same burden of proof — clear and convincing evidence — should apply when the State wished to prove aggravating factors and/or extraordinary circumstances at the sentencing hearing of a first felony offender for the purpose of seeking a sentence above the normal Austin limit. Buoy, 818 P.2d at 1167-68.

The Department of Law was dissatisfied with Buoy, so they drafted House Bill 396 to overturn it. In its original form, House Bill 396 read:

Except as provided in AS 12.55.145(d) [i.e., proof of a defendant’s prior felony convictions, which is governed by the “beyond a reasonable doubt” standard], 12.55.155(f) [i.e., proof of aggravators and mitigators in cases governed by presumptive sentencing, where the “clear and convincing evidence” standard applies], and 12.55.165 [i.e., proof of non-statutory factors or extraordinary circumstances which, again, is governed by the “clear and convincing evidence” standard], the preponderance of the evidence standard of proof applies to sentencing proceedings.

During the House Judiciary Committee’s hearings on this bill, the Committee was repeatedly told that the effect of this language was to overturn Buoy but that, in all other respects, the bill would codify and restate Alaska’s existing law regarding the burdens of proof at sentencing.

During a hearing on January 15, 1992, Staff Counsel Laurie Otto told the Committee that the proposed bill “would codify a whole body of [existing] case law” and that “the Buoy case was the only one which would be reversed by [the proposed AS 12.55.025© l”.1 At a subsequent hearing on January 17, Ms. Otto referred to a written analysis of the bill which had been distributed to the Committee members. This memorandum apparently contained a discussion of the benefits of the “preponderance of the evidence” standard of proof. Ms. Otto again assured the Committee that the proposed bill would merely codify Alaska’s existing law, with the exception of overruling Buoy.2,

At this same hearing of January 17, 1992, Deputy Commissioner of Public Safety Gayle Horetski echoed Ms. Otto’s comments: she told the Committee that the proposed bill would return Alaska’s sentencing law to what it had been before Buoy was decided.3 One week later, at a hearing on January 24,1992, Assistant Attorney General Margo Knuth (representing the Department of Law) also announced support for the proposed bill. She, too, indicated that the effect of the new law would be to return Alaska sentencing law to its pre-Buoy status.4

Surprisingly, despite all of this support for overruling Buoy, the legislature decided not to overrule Buoy. Instead, they did the opposite: they enacted a new statute to codify the Buoy decision. That statute — originally enacted as AS 12.55.125(k), and now re-numbered as AS 12.55.125(k)(2) — reads:

[Except as provided in subdivision (1) of this statute], [a] first felony offender convicted of an offense for which a presumptive term of imprisonment is not specified ... may not be sentenced to a term of unsuspended imprisonment that exceeds the presumptive term for a second felony offender convicted of the same crime unless the court finds by clear and convincing evidence that an aggravating factor under AS 12.55.155(c) is present, or that circumstances exist that would warrant a referral *891to the three-judge panel under AS 12.55.165.

Having enacted AS 12.55.125(k) to codify the Buoy decision, the legislature approved the Department of Law’s proposed AS 12.55.025© — but only after adding the new statute, AS 12.55.125(k), to the list of sentencing issues exempted from the preponderance of the evidence standard of proof — that is, sentencing issues governed by a higher standard of proof.

In its petition for rehearing, the State argues that the legislature’s inclusion of AS 12.55.125(k) in the list of exemptions is proof that the legislature considered all of the factual issues that might arise at sentencing hearings, and that the legislature carefully chose which issues would be governed by a higher standard of proof. According to the State, the fact that AS 12.55.025© contains no exemption for factual issues under AS 12.55.125(c) — i.e., the fact that this statute contains no exemption for issues of fact that will determine the presumptive term for a first felony offender convicted of a class A felony — means that the legislature decided to overrule our decision in Huf.

But the State’s interpretation is inconsistent with the legislative history. As just explained, the legislature was told that AS 12.55.025®, as originally proposed, would effect no change in Alaska sentencing law except to overrule Buoy. The legislature rejected the Department of Law’s overture to overrule Buoy, they enacted a statute to codify Buoy, and then they amended proposed AS 12.55.025® so that it expressly confirmed the Buoy decision.

In all of these discussions, no one indicated dissatisfaction with our decision in Huf. In fact, no one mentioned Huf. The reason no one mentioned Huf is plain: the sponsors of AS 12.55.025® and the Judiciary Committee’s own staff counsel repeatedly assured the Committee that, leaving aside Buoy, the proposed statute would ratify Alaska’s existing law concerning the burdens of proof at sentencing.

Based on this legislative history, we conclude that even though the wording of AS 12.55.025© appears to supersede our decision in Huf, this was not the legislature’s intention. Rather, the failure of AS 12.55.025® to include a reference to AS 12.55.125(c) appears to be a drafting error on the part of the proponents of the bill — proponents whose express intention was to codify Alaska’s existing law on this issue.

For these reasons, we re-affirm our decision that, on the issue of whether Tuttle possessed a firearm during the robbery for purposes of determining his presumptive term under AS 12.55.125(c), the sentencing judge applied the wrong standard of proof. The State was — and is — obliged to prove this fact beyond a reasonable doubt.

. See Minutes of the House Judiciary Committee, January 15, 1992, Tape 92-1, Side B, Log No. 211.

. See Minutes of the House Judiciary Committee, January 17, 1992, Tape 92-2, Side A, Log No. 578.

. See id., Tape 92-2, Side A, Log No. 680.

. See Minutes of the House Judiciary Committee, January 24, 1992, Tape 92-3, Side B, Log No. 140.