Opinion
Court of Appeals No. A-11861 No. 6457
04-19-2016
STEPHEN J. BURGESS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-13-3222 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge. Appearances: Glenda Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. Senior Judge COATS.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Following a jury trial, Stephen J. Burgess was convicted of second-degree sexual abuse of a minor for engaging in sexual penetration with a fourteen-year-old girl.
In his appeal, Burgess first argues that his trial judge invaded the province of the jury during a conversation he had with one of the jurors. Second, Burgess argues that, during final argument, the prosecutor impermissibly commented on Burgess's constitutional right not to testify. Burgess did not raise either of these objections in the trial court, but he now argues that these occurrences were plain errors and they require a new trial. For the reasons explained in this opinion, we reject these claims.
Burgess also contends that the superior court erred in relying on this Court's decision in State v. Rastopsoff to find that Burgess was a third felony offender for sentencing purposes. As we will explain, Burgess has not shown that Rastopsoff should be overturned, and therefore, we reject his challenge to his sentence.
659 P.2d 630 (Alaska App. 1983).
Background facts
In early 2007, fourteen-year-old K.H. was living on and off with her grandmother; when she was not at her grandmother's residence, she crashed at other people's houses in Anchorage. Through mutual friends, K.H. was introduced via a letter to Burgess — who was in prison at the time — and they became pen pals.
Burgess was released from prison in July 2007, when he was twenty-three years old. Shortly after Burgess was released, K.H. went to a party where she had sex with Burgess. K.H. and Burgess had sex approximately eight times over the next few months.
By November 2007, Burgess was back in custody on another offense. Several months later, in May 2008, K.H. gave birth to a baby boy; Burgess was later determined to be the baby's father.
After Anchorage police were tipped off to this relationship, they tried to interview K.H., but K.H. was uncooperative. (K.H. testified at trial that she was worried that Burgess would get in trouble, that Burgess told her not to talk to the police, and that she was afraid of Burgess.)
The police also interviewed Burgess. In the interview, Burgess denied having any children except a five-year-old son by another woman. He admitted that he knew K.H., but he said that he was like her "big brother." Burgess told the police that he had "no idea" if K.H. had any children, and he denied having sex with her or being the father of her baby. When asked if he knew — "ballpark" — how old K.H. was, he said "no."
Several years later, in early 2013, the State performed DNA testing of samples collected from K.H., her baby, and Burgess. Burgess was determined to be the baby's father, and the State charged Burgess with second-degree sexual abuse of a minor.
AS 11.41.436(a)(l).
At Burgess's trial, all of the elements of second-degree sexual abuse of a minor were uncontested and admitted by the defense — including the respective ages of Burgess and K.H., the fact that they had sex, and the paternity of K.H.'s baby.
See id.
Burgess's sole defense was that he acted under a reasonable mistake about K.H.'s age. The evidence at trial was conflicting on whether Burgess reasonably believed that K.H. was at least sixteen when they had sex.
See AS 11.41.445(b).
After the close of the evidence, Superior Court Judge Michael Spaan had a conversation with one juror with Burgess and both attorneys present. This conversation became the basis for Burgess's motion for a new trial, and one of his points on appeal.
The jury convicted Burgess of second-degree sexual abuse of a minor. Immediately after the jury's verdict, Burgess filed a motion for a mistrial and a new trial. The court denied this motion.
Whether the superior court's statements to juror M.C. amounted to plain error
Right before the parties were to present their closing arguments — while Judge Spaan, Burgess, and both attorneys were on record in the courtroom without the jury — the judge notified the parties that juror M.C. had contacted his judicial assistant about a scheduling conflict. The judge told the parties that M.C., who was an attorney, told the judge's assistant that M.C. had a scheduled settlement conference in front of another judge that afternoon. The judge suggested to the parties that he bring M.C. in to question her about whether she wanted to stay on the jury or be excused.
The defense attorney supported the judge's proposed plan to bring M.C. in and question her about the conflict. The defense attorney also stated that he would "rather not dismiss [M.C.]" from the jury.
Outside the presence of the other jurors, and with the parties present, Judge Spaan spoke to M.C. He told her: "I ... encourage you, if you have an opportunity, ... to stay on this jury." The judge explained that serving on a jury is a unique and instructive opportunity for a lawyer to experience the dynamics of jury deliberation. He then stated:
And the dynamic [part] is the deliberation, if you're smart enough to say, "I don't want to be foreperson," and just sit back and see how it works.Judge Spaan then acknowledged that M.C. had an obligation to her client, and he asked her what she wanted to do. M.C. told the judge that her law partner could cover the settlement conference, so she could serve on the jury.
Burgess did not object to this conversation.
M.C. ultimately deliberated with the rest of the jurors.
Later, the jury returned its guilty verdict and was discharged. Immediately after the jury was discharged, Burgess made an oral motion for a mistrial and a new trial. The court directed Burgess to file his motion in writing.
Burgess filed his written motion, claiming that Judge Spaan improperly instructed M.C. not to be the foreperson or to deliberate with the other jurors, and that the judge's instructions to M.C. affected the outcome of the trial.
Judge Spaan denied the motion because he concluded that his conversation with M.C. did not prejudice Burgess. The judge explained that his statements to M.C. were "made in an effort to keep M.C. on the jury despite her potential ... conflict." The judge acknowledged that he "would word similar conversations differently in the future," but he did not find that his words constituted an instruction to M.C. to abstain from deliberating. The judge further stated that the jury instructions cured any confusion that the conversation may have caused.
Burgess argues on appeal that it was error for Judge Spaan to talk to juror M.C. the way he did — that it was an invasion of the province of the jury and interfered with the jury's deliberations. Because Burgess did not object below, our review is limited to plain error. "[P]lain error is an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial."
Moreno v. State, 341 P.3d 1134, 1136 (Alaska 2015) (internal quotation marks omitted).
We note that the judge himself admitted that his word choice was not ideal and that he would phrase future conversations differently. We agree that this would be wise.
However, in this case, the record shows that Burgess made a tactical decision not to object to the disputed conversation. As explained above, after first learning about juror M.C.'s scheduling conflict — and before M.C. was questioned by the court — the defense attorney affirmatively stated his preference that M.C. remain on the jury, and he affirmatively supported the judge's decision to bring M.C. in and question her about the scheduling conflict. The challenged conversation took place minutes later.
The fact that the attorney did not contemporaneously object to the court's comments indicates either that (a) the defense attorney approved of the judge's approach, because the attorney wanted to keep M.C. on the jury, or, at the very least, (b) the defense attorney assessed the possibility of objecting, and decided to take his chances. Burgess did not object until more than twenty-four hours later, after the jury returned its guilty verdict and was dismissed from further service. But if Burgess's attorney believed that the judge's conversation with M.C. justified a mistrial, he was required to raise this issue before the jury returned its verdict. Owens v. State, 613 P.2d 259, 261 (Alaska 1980); Turpin v. State, 890 P.2d 1128, 1130 (Alaska App. 1995) ("A defendant is not allowed to 'take a gambler's risk and complain only if the cards [fall] the wrong way.'").
In any event, given the jury instructions in this case, we doubt that the judge's conversation with M.C. prejudiced Burgess. The instructions explained that the jurors were to convict Burgess only if the State proved the elements of the crime beyond a reasonable doubt. The court also instructed the jurors that each of them had a "duty to consult with one another and to deliberate with a view to reaching an agreement."
In addition, the jurors swore an oath, in accordance with Alaska Rule of Criminal Procedure 24(f), that they would resolve the case on the evidence presented and according to the court's instructions on the law. The Alaska Supreme Court and this Court have repeatedly stated that courts presume that a jury follows the trial court's instructions. As a practicing attorney, M.C. presumably understood the jury's proper role better than most jurors.
E.g., Simms v. State, 464 P.2d 527, 528 (Alaska 1970); Knix v. State, 922 P.2d 913, 923 (Alaska App. 1996).
We thus conclude that the judge's conversation with juror M.C. was not plain error.
Whether the prosecutor's closing argument amounted to plain error
Burgess argues that the prosecutor, in his closing argument, impermissibly commented on Burgess's right not to testify, and that the prosecutor "unjustly nullified" Burgess's defense of reasonable mistake of age. Burgess did not object to the prosecutor's comments. This Court reviews de novo his unpreserved claim that his constitutional right not to testify was violated.
See Goldsbury v. State, 342 P.3d 834, 836 (Alaska 2015).
To analyze this claim, it is necessary to understand how the case was argued.
Relevant facts
As explained above, most of the relevant facts in this case were undisputed at trial. It was clearly shown (and Burgess admitted) that Burgess and K.H. had sex when Burgess was twenty-three years old and K.H. was fourteen years old. It was also clearly shown that Burgess was the father of K.H.'s baby.
See AS 11.41.436(a)(l) (elements of second-degree sexual abuse of a minor).
Burgess's defense at trial was that he made a reasonable mistake in believing that K.H. was at least sixteen years old when they had sex. To prevail on this defense, Burgess had to show, by a preponderance of the evidence, that he reasonably believed that K.H. was at least sixteen years old, and that he took reasonable measures to verify the victim's age.
AS 11.41.445(b) & AS 11.81.900(b)(2)(B).
As evidence that Burgess did not believe that K.H. was at least sixteen when they had sex, the State played the tape of Burgess's 2008 interview with police. In that tape, Burgess denied having sex with K.H. and claimed not to know her age.
K.H. testified at trial. She admitted that she initially lied to Burgess about her age when she met him at the party, reportedly so that she could drink alcohol. K.H. also implied that she lied about her age in order to have sex with Burgess. However, K.H.'s testimony regarding when she told Burgess her real age was contradictory. When questioned by the prosecutor, K.H. first stated that she eventually told Burgess she was fourteen when she became pregnant. But she claimed not to remember whether she and Burgess had sex after that disclosure. The prosecutor then impeached K.H. with her own statement to the prosecutor and a detective the day before, when she stated that one of the times she and Burgess had sex was after she had told him that she was fourteen. When confronted with her prior statement, K.H. admitted that this was true.
Burgess did not testify. In support of his reasonable mistake of age defense, Burgess called various family members and friends as witnesses. All of the witnesses testified that K.H. told them that she was either eighteen or would soon turn eighteen. They also testified that they did not disbelieve her because they witnessed her doing things that indicated to them that she was older — drinking, smoking, partying, dressing provocatively, driving a car, and not going to school.
Burgess's mother testified that Burgess was likely present when K.H. told her that she was eighteen. Burgess's sister testified that Burgess told her that K.H. was eighteen. The rest of the defense witnesses did not testify that Burgess was present when K.H. told them her age or admitted that Burgess was not present. Several of the witnesses testified that they did not believe that Burgess knew how young K.H. was, and that he would not have had sex with her had he known.
After the close of the evidence, the jury was instructed that Burgess had raised the affirmative defense of reasonable mistake of age. The instruction explained that it was Burgess's affirmative burden to prove that, at the time of the offense, Burgess believed K.H. was at least sixteen years old, Burgess's belief was reasonable, and Burgess undertook reasonable measures to verify that K.H. was at least sixteen years old. The jury was also instructed that this defense was Burgess's to prove by a preponderance of the evidence.
The jury was also given jury instruction 5, which stated that:
A person's mental state may be shown by circumstantial evidence. It can rarely be established by any other means. Witnesses can see and hear, and thus be able to give direct evidence of, what another person does or does not do. But no one can see or hear the mental state the person had at the time the person acted or did not act. Yet what a person does or does not do may indicate that person's mental state.
You may consider any statements made and acts done or not done by the person and all other facts and circumstances in evidence when determining that person's mental state.
During his closing argument, the prosecutor argued that Burgess was only raising his affirmative defense of mistake of age because his original story — that he never had sex with K.H. — was disproved by DNA testing. The prosecutor also argued that Burgess had not proved the elements of this affirmative defense.
The prosecutor began by discussing the first element of the defense. He stated that "there is no evidence whatsoever that [Burgess] believed [K.H.] was sixteen." He then referred to jury instruction 5 and summarized: "Witnesses can see and hear, and thus be able to give direct evidence of what another person does or does not do. But no one can see or hear the mental state the person had at the time the person acted or did not act." The prosecutor explained that this jury instruction was "just a fancy way of saying that no one is a mind reader. Just because two people ... see the same thing, doesn't mean they interpret it the same way. The defense hasn't proved that the defendant believed [K.H.] was sixteen."
The prosecutor then played the portion of Burgess's interview with police where he denied knowing K.H.'s age.
Next, the prosecutor argued that even if Burgess had believed that K.H. was at least sixteen years old, this belief was not reasonable. The prosecutor highlighted several "red flags" that would have given a reasonable person pause. The prosecutor finally noted the lack of evidence regarding Burgess's failure to undertake any reasonable measures to verify K.H.'s age. He gave several examples of what age verification looked like in other contexts, and he then argued that there was "no evidence whatsoever that the defendant undertook reasonable measures."
The prosecutor wrapped up by stating that, regardless of whether the jury "believe[d] the defense witnesses or not," those witnesses had nothing to say on the three elements of the defense because they were not present when K.H. and Burgess were alone, and they did not testify that Burgess took reasonable measures to determine K.H.'s age.
Burgess's attorney argued in his closing argument that the evidence demonstrated that Burgess reasonably thought K.H. was at least sixteen years old and that Burgess took reasonable measures to verify her age.
In his rebuttal, the prosecutor reemphasized the points from his closing. He first asserted that the defense had not proved the first element: knowledge. He asserted that the defense attorney:
kept talking about what other people believed, or what the defendant told other people he believed. But the problem with that argument is instruction number 5. Again, no one can see or hear the mental state another person had at the time the person acted or did not act. It's not possible for any of the defendant's relatives or friends to be mind readers.
. . . .
Just because it's possible that he believed does not mean he actually believed.The prosecutor emphasized that Burgess had lied to the police, and he suggested that Burgess had probably lied to his sister and mother as well.
Later, the prosecutor reiterated that, as to the first element, "the Court has made very clear to you that there's no such thing as a mind reading witness. Other people don't get to testify as to what someone else believed."
Analysis
Burgess argues that the prosecutor's argument left the impression that Burgess had to testify in order to provide evidence of his state of mind. According to Burgess, the prosecutor's statements that all of Burgess's evidence was irrelevant to his affirmative defense, and that he had presented no direct evidence, implied to the jury that the only way for Burgess to prove his defense was to take the stand to testify to his own state of mind.
In assessing whether prosecutorial remarks amount to a prohibited comment on an accused's failure to testify, "the test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." This is true "[e]ven where an adverse comment only indirectly addresses a defendant's invocation of the right against self-incrimination." Because Burgess did not object to these comments, we review his claim for plain error.
Armstrong v. State, 502 P.2d 440, 450 (Alaska 1972) (quoting McCracken v. State, 431 P.2d 513, 517 (Alaska 1967)).
Goldsbury, 342 P.3d at 837.
Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
We agree that the theme of the prosecutor's argument misstated the jury instructions explaining how the jury was to evaluate the evidence. Contrary to the prosecutor's argument, Burgess could properly introduce the testimony of other witnesses and other circumstantial evidence to support his affirmative defense. Under Alaska law, there is no categorical preference for direct evidence over circumstantial evidence. So it was not determinative that Burgess did not offer direct evidence of his state of mind (i.e., his belief as to K.H.'s age).
Ashley v. State, 6 P.3d 738, 743 (Alaska App. 2000).
Jury instruction 5 explained (1) that direct evidence of a person's state of mind is rare, and that state of mind is often shown by circumstantial evidence; (2) that witnesses can give direct evidence of what people say or do, but cannot give direct evidence of another person's state of mind; and (3) that the jury can consider a person's actions and statements and all other facts in evidence when determining the person's mental state. The prosecutor — by emphasizing only the second part of this instruction, and by asserting that witnesses could not be "mind readers" — gave the impression that circumstantial evidence of Burgess's state of mind was not sufficient to prove his affirmative defense and implied that the only way it could be proved was through direct evidence. From that, the jury could have assumed that the only direct evidence would be Burgess's own statement that he believed K.H. was at least sixteen. And if the jury believed that, then they could have questioned why Burgess had not taken the stand.
The prosecutor exacerbated this problem when he repeatedly stated that Burgess had presented "no evidence whatsoever" of the elements of his defense. This was not true. Burgess presented circumstantial evidence — in particular, his sister's testimony that Burgess told her K.H. was eighteen, and his mother's testimony that Burgess was present when K.H. told her that she (K.H.) was eighteen.
However, we conclude that this error was harmless beyond a reasonable doubt.
See Goldsbury, 342 P.3d at 839 (in case where prosecutor indirectly commented on the defendant's right to testify in closing, holding that error was harmless because the comment was indirect and the court's instructions explained that the defendant had an absolute right not to testify).
First, the prosecutor's comments were indirect and not so egregious as to be incurable by instructions. The judge instructed the jury twice that it could not draw any conclusions from the fact that Burgess exercised his right not to testify. The jury also heard the full version of jury instruction 5 on circumstantial evidence of state of mind, as well as another instruction that explained that both direct and circumstantial evidence could be considered, and that neither form of evidence necessarily had greater weight than the other. The judge instructed the jury on the elements of the crime and Burgess's affirmative defense. He also instructed the jury that the burden of proving the defense was on Burgess. Finally, the judge explicitly instructed the jury to disregard the arguments of counsel if the arguments departed from the facts or from the law.
Second, we note that all the State needed to convict Burgess of second-degree sexual abuse of a minor was one instance of Burgess having sex with K.H. after he knew she was under the age of sixteen. Burgess's witnesses did not say when their conversations with K.H. or Burgess had occurred. K.H. testified that she had told Burgess her real age after she became pregnant, and she admitted that they did have sex again after that disclosure.
It is possible that the jury believed that at some point early on in their sexual relationship Burgess held a subjective and reasonable belief that K.H. was sixteen or older. But Burgess's witnesses did not purport to know whether Burgess held this knowledge at every point during his sexual relationship with K.H. Thus, even if the jury believed everything the witnesses said, the jury could still have rejected Burgess's affirmative defense if it concluded that, at some point, Burgess learned K.H.'s true age and had sex with her anyway.
Viewing the prosecutor's challenged comments in the context of the trial as a whole, we find that the comments did not undermine the fundamental fairness of the trial, and thus, were not plain error.
Adams, 261 P.3d at 764.
Whether the judge erred in determining that Burgess had two prior convictions for purposes of sentencing under AS 12.55.125(i)(3)
Burgess also contends that he is entitled to a new sentencing hearing. The crux of Burgess's argument is that this Court's decision in State v. Rastopsoff should be overturned because this Court's interpretation of the presumptive sentencing statutes in Rastopsoff is irrational and arbitrary, and because our interpretation of the statutes violates due process and equal protection. But Burgess does not convincingly argue why we should overturn Rastopsoff.
659 P.2d 630 (Alaska App. 1983).
See Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997) ("a litigant who asks an appellate court to overrule a prior decision must demonstrate convincing reasons why the existing rule was originally erroneous or is no longer sound because of changed conditions ... [and] that more good than harm would result from a departure from precedent") (internal quotations omitted).
Prior to his conduct in this case, Burgess had committed and been sentenced for two separate felonies: a second-degree robbery committed on December 22, 2003, and a misconduct involving a weapon offense committed on April 9, 2004. Burgess was sentenced for both of these crimes on May 17, 2004.
The main issue at Burgess's sentencing was whether these two prior felony convictions should be treated separately under AS 12.55.125(i)(3) or whether, because the convictions were entered on the same day, they should be treated as one conviction. This distinction was significant: if Burgess had only one prior felony conviction, he would be subject to a 10- to 25-year presumptive range (as a second felony offender) versus a 20- to 35-year presumptive range (as a third felony offender).
The superior court concluded that, under the case law and statutes, Burgess's convictions should be counted separately. The court ultimately sentenced Burgess to the lowest possible sentence in the applicable range for third felony offenders — 25 years' imprisonment with 5 years suspended (20 to serve).
Alaska cases describe two rules for determining how many prior convictions a defendant has. These rules are based on the appellate courts' interpretations of the statutory language pertaining to how prior convictions are treated in different circumstances and for different crimes.
The first approach taken by Alaska courts is the rule declared in State v. Carlson. Carlson interpreted Alaska's former habitual criminal statute — the statute that existed prior to the 1980 effective date of Alaska's current criminal code. This former habitual criminal statute provided increased penalties for felony offenders who had "previously been convicted" of one, two, or three or more felonies. The Carlson court interpreted this language to mean that "where the sequence of prior convictions is in issue, the rule ... is that each successive felony must be committed after the previous felony conviction ... ." The rationale behind the rule is that a person is more blameworthy if they commit a new crime after being judicially confronted with their prior misconduct and given an opportunity for reformation.
560 P.2d 26 (Alaska 1977), superseded by statute as recognized in Linn v. State, 658 P.2d 150, 152 (Alaska App.1983).
Carlson, 560 P.2d at 28 (analyzing former AS 12.55.050, since repealed).
See former AS 12.55.050.
Carlson, 560 P.2d at 29.
Id. at 30.
The other rule, described in State v. Rastopsoff, is a partial modification of the Carlson rule. In Rastopsoff, this Court interpreted new statutory language enacted as a part of the 1978 criminal code revision. The new statute, AS 12.55.145(a), included language similar to the earlier habitual criminal statute (speaking of defendants "previously convicted of a felony"), but the new statute also included a separate provision further explaining how prior convictions are to be counted in different circumstances. In particular, AS 12.55.145(a)(3) stated:
659 P.2d 630 (Alaska App. 1983).
See id. at 635.
For purposes of considering prior convictions in imposing sentence under this chapter ... 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 ... .
We held in Rastopsoff that, under this statute, a defendant's current offense must have been committed after the defendant was convicted of any previous crime. However, we construed AS 12.55.145(a) to mean that a defendant's previous convictions are not subject to the strict ordering system that was adopted in Carlson — i.e., the rule that a defendant must have committed each crime (and been convicted and sentenced for that crime) before the defendant committed the next crime, in order for each crime to count as a prior conviction. In Rastopsoff, we held that the new statutory language modified the Carlson rule by providing that the order of a defendant's prior felony convictions did not matter, and that the new statute did not require the State to prove that the defendant had an opportunity for reformation between each one of the defendant's past convictions. (Under the statute,only past convictions arising out of one continuous episode, with no change in the criminal objective, would be treated as a single conviction.)
Id. at 640-41.
See id.
Id. at 635-37 (quoting former AS 12.55.145(a)(3)).
Our analysis in Rastopsoff was followed by the Alaska Supreme Court in Tulowetzke v. State, Department of Public Safety, Division of Motor Vehicles. The supreme court agreed that "[t]he language [in AS 12.55.145] strongly implies that in all other circumstances, multiple prior convictions must be counted separately."
743 P.2d 368 (Alaska 1987).
Id. at 370; see also Commentary on the Alaska Revised Criminal Code, 2 Senate Journal Supp. No. 47 at 157-58, 1978 Senate Journal 1399, quoted in Rastopsoff, 659 P.2d at 635-36.
We see no reason to reject the reasoning of these two decisions.
Burgess's two prior convictions clearly arose out of separate criminal episodes. The statutory language we interpreted in Rastopsoff is identical to the applicable language in Burgess's case. Therefore, under Rastopsoff, Burgess was properly treated as a third felony offender.
See AS 12.55.145(a)(1)(c).
The case cited by Burgess to support his argument, Wooley v. State, is inapposite. In Wooley, we held that a different statute, with completely different statutory language, codified the older Carlson rule. That statute, AS 11.46.130(a)(6), elevated a theft from a misdemeanor to a felony if, "within the preceding five years, the person has been convicted and sentenced on two or more separate occasions" of certain theft-related offenses. We adhere to our conclusion that this language is materially different from the language in AS 12.55.145(a).
221 P.3d 12 (Alaska App. 2009).
Id. at 18.
See Wooley, 221 P.3d at 13, 17-19 (emphasis added in Wooley). --------
We therefore reject Burgess's challenge to his sentence.
Conclusion
We AFFIRM Burgess's conviction and sentence.