concurring.
This case requires us to construe what the legislature intended when they added subsection (1) to AS 12.55.125(k) in 1999. This statute reads:
(k) A first felony offender convicted of an offense for which a presumptive term of imprisonment is not specified under this section
(1) may be sentenced to a term of unsuspended imprisonment that exceeds the presumptive term for a second or third felony offender convicted of the same crime if the offender is convicted of criminally negligent homicide and the victim is a child under the age of 16;
(2) except as provided in (1) of this subsection, may not be sentenced to a term of unsuspended imprisonment that exceeds the presumptive term for a see-ond 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 cireumstances exist that would warrant a referral to the three-judge panel under AS 12.55.165.
Beasley argues that when the legislature enacted subsection (1) in 1999, the legislature intended to alter the meaning of the preexisting portion of the statute-the part that is now subsection (2). Beasley contends that, under the current version of the statute, when a first felony offender is convicted of any felony governed by presumptive sentencing other than criminally negligent homicide involving a child, the offender's unsuspended term of imprisonment can not exceed the presumptive term that applies to third felony offenders.
This claim is moot in Beasley's case. Both AS 12.55.125(k)(1) and (k)(2) limit a defendant's unsuspended term of imprisonment. Beasley's unsuspended term of imprisonment is 2% years-less than the 3-year presumptive term that applies to third felony offenders convicted of the same offense. Thus, even under Beasley's construction of the statute, her sentence would be proper.
Even though Beasley's claim is moot, my colleagues have decided to address the merits of that claim. I concur in their conclusion that Beasley's interpretation of the statute is mistaken.
In 19921, the Alaska legislature enacted AS 12.55.125(k)-the portion of the statute that is now AS 12.55.125(k)(2). This portion of the statute declares that, in cases not governed by presumptive sentencing, a first felony offender "[can] 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 cireum-stances exist that would warrant a referral to the three-judge panel under AS 12.55.165."
Both the wording of this provision and the minutes of the House Judiciary Committee from 1992 2 indicate that the legislature enacted this law because they wished to codify the sentencing rule that this Court first an*1087nounced in Austin v. State3 and that we later clarified in Tazruk v. State4 and Bregenoff v. State.5 The Austin/Tazruk/Brezenoff rule states that, when an offense that is subject to presumptive sentencing does not specify a presumptive term for a first felony offender, the unsuspended portion of a first felony offender's term of imprisonment should be more favorable than the presumptive term that applies to second felony offenders, unless the State proves statutory aggravating factors (i.e., the aggravating factors listed in AS 12.55.155(c)) or non-statutory aggravating factors (ie., the type of extraordinary circumstances that would warrant referral of the defendant's case to the statewide three-judge sentencing panel under AS 12.55.165).
Since 1992, we have repeatedly and consistently interpreted this statutory language as codifying the Austin/Tazruk/Brezenoff rule (with the slight difference that the Austin rule calls for a first offender to receive an unsuspended term of imprisonment more favorable than the presumptive term for see-ond felony offenders, while the statute calls for a first felony offender to receive an un-suspended term no greater thon the presumptive term for second felony offenders).6 I particularly note that in Petersen v. State, 930 P.2d 414, 487 (Alaska App.1996), we applied AS 12.55.125(k) to a first felony offender who was convicted of a class C felony and who received 5 years' imprisonment with 2 years suspended-i.e., a less favorable sentence than the 3-year presumptive term for a third felony offender.7
In 1999, when the legislature was discussing the provision that eventually became subsection (1) of AS 12.55.125(k) 8, the legislature was told that this provision would allow courts to impose higher unsuspended sentences on defendants convicted of criminally negligent homicide involving children.9 But no one ever suggested that this provision would impose new restrictions on the courts' authority to sentence defendants convicted of other felonies, or that the provision would modify the series of court decisions interpreting the language that remained in subsection (2).
Given this backdrop, I agree with my colleagues that AS 12.55.125(k)(1) was intended to abrogate the Austin rule for first felony offenders convicted of criminally negligent homicide involving children younger than 16. That is, the legislature intended to authorize courts to sentence these offenders to unsus-pended terms of imprisonment equal to or greater than the presumptive term for third felony offenders convicted of the same crime even when the State did not prove aggravating factors under AS 12.55.155(c) or extraordinary civreumstances as defined in AS 12.55.165. The legislature did not intend to alter the meaning of AS 12.55.125(k)(2) by imposing a new restriction on the unsuspend-ed terms of other first felony offenders.
. See SLA 1992, ch. 79, § 25.
. See Minutes of the House Judiciary Committee for January 15, 1992, Tape Jud 92-1, Side B, at 177 (testimony of Laurie Otto, Staff Counsel for the House Judiciary Committee).
. 627 P.2d 657 (Alaska App.1981).
. 655 P.2d 788, 789 (Alaska App.1982).
. 658 P.2d 1359, 1362 (Alaska App.1983).
. See Cook v. State, 36 P.3d 710, 730 (Alaska App.2001); Pitka v. State, 19 P.3d 604, 608 (Alaska App.2001); Foley v. State, 9 P.3d 1038, 1040 & n. 5 (Alaska App.2000); Harris v. State, 980 P.2d 482, 486 (Alaska App.1999); Reese v. State, 930 P.2d 1295, 1298-99 (Alaska App.1996).
. Specifically, this Court said: "Petersen was a first felony offender. Under AS 12.55.125(k) and Austin v. State, 627 P.2d 657 (Alaska App.1981), as construed in Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.1983), Petersen could not receive 3 years to serve unless the sentencing judge found one or more of the aggravating factors listed in AS 12.55.155(c) (or unless the judge found extraordinary circumstances under AS 12.55.165).
. HCS CSSB 3 (Finance), § 11.
. See Minutes of the House Judiciary Committee for March 3, 1999, Tape 99-9, Side A, at 1638 (testimony of Juli Lucky, staff researcher for Senator Halford), and Minutes of the House Finance Committee for May 10, 1999, Tape HFC 99-122, Side 1 (testimony of Juli Lucky).