Summary
explaining “Mr. Thompson was convicted in 2007 of one count of second-degree sexual abuse of a minor, five counts of first-degree unlawful contact, and one count of violating conditions of release, based on offenses that took place in 2006.”
Summary of this case from Thompson v. CordleOpinion
A-13543
10-13-2021
JASON M. THOMPSON, Appellant, v. STATE OF ALASKA, Appellee.
Jason M. Thompson, in propria persona, Wasi\\a, Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District Nos. 3PA-06-02765 CR &3PA-09-01853CR, Palmer, Jonathan A. Woodman, Judge.
Jason M. Thompson, in propria persona, Wasi\\a, Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
TERRELL Judge.
Jason M. Thompson appeals the denial of his Alaska Criminal Rule 35(a) motion to correct what he claims are illegal sentences he received in cases dating from 2006 and 2009. Because we conclude that the superior court correctly ruled that the sentences were not illegal, we affirm the denial of Thompson's motion.
Background facts and proceedings
Thompson's claims arise from the following events. Following a jury trial, Thompson was convicted in 2007 of one count of second-degree sexual abuse of a minor, five counts of first-degree unlawful contact, and one count of violating conditions of release, based on offenses that took place in 2006. The trial court subsequently found the mitigating factors set out in AS 12.55.155(d)(8) and (d)(l2).
AS 11.41.436(a)(1), AS 11.56.75O(a)(1)(B)(i), and former AS 11.56.757(b)(1) (2006), respectively.
The first factor has since been renumbered as AS 12.55.155(d)(9).
The presumptive range for Thompson's conviction for second-degree sexual abuse of a minor was 5 to 15 years. But because the trial court found a mitigating factor, it had the authority to reduce the term of active imprisonment to half of the low end of the presumptive range, i.e., down to 2.5 years. The trial court's initial orally-pronounced sentence for the second-degree sexual abuse of a minor conviction was 5 years with 2.5 years suspended. But after the prosecutor pointed out that AS 12.55. l25(o)(2) imposed additional requirements for suspended time and probation supervision, the court modified the sentence to 5.5 years with 3 years suspended (still 2.5 years to serve) and a 10-year probation period.
AS 12.55.l25(i)(3)(A), as amended by SLA 2006, ch. 14, § 4. Thompson was charged in 2006 for conduct that post-dated the amendments to the sentencing statutes for sexual felonies.
AS 12.55.155(a)(2).
Former AS 12.55.l25(o)(2) (2006) required sex offenders convicted of a class B felony to receive a suspended term of imprisonment of at least 3 years and a 10-year minimum period of probation supervision.
In 2009, Thompson was charged with four counts of second-degree sexual abuse of a minor. As a second felony offender with a prior conviction for a felony sexual offense, Thompson was subject to a presumptive range of 15 to 30 years.Thompson entered into an agreement with the State in which he pleaded guilty to a consolidated count of second-degree sexual abuse of a minor, stipulated to an aggravating factor, and agreed to a sentence of 18 years with 3 years suspended and a 10-year term of probation.
AS 11.41.436(a)(1).
AS 12.55. l25(i)(3)(c). Thompson was again subject to a mandatory period of 3 years of suspended imprisonment and to a minimum probation period of 10 years. Former AS 12.55.l25(o)(2) (2009).
In 2019, Thompson filed a motion to correct an illegal sentence in his 2006 and 2009 cases. He argued that the sentences he received for second-degree sexual abuse of a minor, a class B felony, were illegal because (1) the United States Supreme Court had supposedly held in United States v. Booker that mandatory presumptive sentencing schemes like Alaska's were unconstitutional, (2) the sentences exceeded the "seriousness" classification of a class B felony as set out in AS 11.81.250(a), and (3) he did not have unambiguous notice, for due process purposes, of the potential punishment he faced (because the presumptive ranges for class B felonies that were sexual offenses differed from the presumptive ranges for class B felonies involving non-sexual offenses). As to his 2009 case, Thompson made the additional argument that his sentence was illegal because, according to Thompson, sentencing schemes where prior convictions are used to enhance the sentencing level for an offense violate the federal and state prohibitions against double jeopardy.
Alaska Criminal Rule 35(a) ("The court may correct an illegal sentence at anytime.").
United States v. Booker, 543 U.S. 220 (2005).
The superior court denied Thompson's motion to correct an illegal sentence on the basis that both his 2006 and 2009 sentences were within the presumptive ranges for first and second felony offenders convicted of second-degree sexual abuse of a minor.
Thompson then filed this appeal.
Why we reject Thompson's claims
As an initial matter, Thompson argues that by not addressing every claim that he asserted in the superior court, the State implicitly conceded the unaddressed claims and cannot contest them now. But while failure to respond to clearly articulated claims may, under some circumstances, be construed as a concession of their validity, a court is not required to rule in a claimant's favor on a point because the opposing party did not address it. Indeed, courts have a duty to construe the law regardless of whether a claim is unopposed. And once a court addresses a point and rules in the opposing party's favor, that party may later argue in favor of affirming that ruling.
State, Dep 't of Health & Soc. Servs., Off. of Child, 's Servs. v. Michelle P., A\\ P.3d 576, 586 (Alaska 2018); Willie v. State, 829 P.2d 310, 312 (Alaska App. 1992).
Relying on Alaska Criminal Rule 42(h), Thompson further argues that the superior court had to give specific reasons for denying the claims that the State did not specifically address in its opposition. But the portions of the rule Thompson cites address situations where no written opposition of any sort is filed, not situations where a written opposition simply fails to address every legal assertion made in the motion to which it responds. The superior court's order dismissing Thompson's motion to correct an illegal sentence complied with the requirements of Criminal Rule 42.
Thompson relies on the language in Criminal Rule 42(h) stating that "[i]f the court denies a motion to which no opposition has been filed, the court must set forth the reasons for the denial with specificity."
Monturiol v. State, 1997 WL 379159, at *2 (Alaska App. July 9, 1997) (unpublished).
We now turn to the merits of Thompson's substantive claims.
First, Thompson asserts that in United States v. Booker, the United States Supreme Court held that mandatory presumptive sentencing systems such as that used in Alaska are unconstitutional because they violate the Sixth Amendment right to a jury trial. Thompson misconstrues Booker and the primary case that Booker relied on, Blakely v. Washington In Blakely, the United States Supreme Court held that in a mandatory presumptive sentencing system, where the defendant is subject to a presumptive term or range which may not be exceeded unless an aggravating factor is found, the jury rather than the judge must find the aggravating factor, using the beyond-a-reasonable-doubt standard (with exceptions for aggravating factors based on prior convictions or facts admitted by the defendant). In Booker, the United States Supreme Court applied Blakely to the Federal Sentencing Guidelines and found them unconstitutional because they permitted a judge to find an aggravating factor, under a burden of proof less than the beyond-a-reasonable-doubt standard, and then required the judge to impose a sentence above the normal guidelines range based upon the finding of that factor. Booker did not involve Alaska's sentencing laws, nor did it purport to hold that presumptive sentencing systems are inherently unconstitutional, but rather only invalidated the mandatory application of the Federal Sentencing Guidelines because they conflicted with the requirements of Blakely.
Booker, 543 U.S. at 220.
Blakely v. Washington, 542 U.S. 296 (2004).
Mat303-05.
Booker, 543 U.S. at 230-44.
Alaska's sentencing statutes were amended in 2005 to bring them into compliance with Blakely, requiring certain aggravating factors to be found by a jury using the beyond-a-reasonable-doubt standard. Thompson was sentenced under the post-2005 law, and thus his facial challenge to Alaska's sentencing scheme fails. Moreover, both of Thompson's sentences were proper since they did not exceed the presumptive range for his offenses, and the judge was thus authorized to impose the sentences in each case without the need to find aggravating factors.
See SLA 2005, Ch. 2, §§ 1, 22; AS 12.55.155(f)(1)-(2).
Thompson's second substantive claim is that his sentences are illegal both because (1) he lacked notice of the penalties applicable to sexual felonies, and (2) those penalties supposedly contravened the statutory classification system set out in AS 11.81.250. Thompson's reasoning is as follows.
First, AS 11.41.436, the statute defining second-degree sexual abuse of a minor, states that it is a "class B felony." Second, AS 11.81.250, the statute setting out a general classification system for offenses in Title 11, supposedly requires that all offenses designated as class B felonies have the same sentencing ranges. Third, the general sentencing range for class B felonies in 2006 and 2009 was set out in AS 12.55.125(d), and the applicable maximum term was 10 years. Thompson thus reasons that, even though AS 12.55. l25(i) sets out penalties specifically applicable to class B sexual felonies, a person convicted of such a felony lacks proper notice that he will be subject to these higher penalties rather than the general penalties for class B felonies set out in AS 12.55.125(d).
In particular, Thompson asserts that the purported need to reconcile these statutes is evidence that the statutes are unconstitutionally ambiguous. But this Court has rejected that view, stating:
[T]he fact that people can, in good faith, litigate the meaning of a statute does not necessarily (or even usually) mean that the statute is so indefinite as to be unconstitutional. The question is whether the statute's meaning is unresolvably confused or ambiguous after it has been subjected to legal analysis.
Jackson v. State, 890 P.2d 587, 594 (Alaska App. 1995) (quoting De Nardo v. State, 819 P.2d 903, 908 (Alaska App. 1991)).
In this case, the statutes at issue are not ambiguous after having been subjected to basic principles of statutory interpretation.
We similarly reject Thompson's foundational assertion that AS 11.81.250 prohibits the legislature from setting out separate sentencing ranges for sexual felonies. The text of AS 11.81.250 merely classifies felonies into four categories "on the basis of their seriousness, according to the type of injury characteristically caused or risked by commission of the offense and the culpability of the offender." The text contains no pronouncements of what sentencing ranges apply to any of these categories.
Instead, as described earlier, the legislature set the sentencing ranges in AS 12.55.125. The legislature first enacted separate penalty provisions for certain sexual felonies nearly 40 years ago, in 1982. In 2003, the legislature clearly expressed its intent to raise the penalty provisions for class B sexual felonies. The legislature retains the ultimate authority to set the punishment for crimes, and Thompson's claims that AS 11.81.250 requires all class B felonies to have the same penalty ranges and that he lacked adequate notice of the penalty applicable to his offenses are without merit.
See SLA 1982, ch. 143, § 30 (first-degree sexual assault).
See SLA 2003, ch. 90, §§ 2, 5 (raising the penalties for specified sexual felonies).
See Nell v. State, 642 P.2d 1361, 1368 (Alaska App. 1982) (citing cases for the proposition that it is the legislature's prerogative to set punishments for offenses).
Third, Thompson argues that the double jeopardy clauses of the federal and Alaska constitutions prohibit using a prior conviction to enhance the sentencing range for an offense. Both the United States Supreme Court and the Alaska Supreme Court have rejected this claim. Accordingly, Thompson's assertion that his sentence for his 2009 case violated the prohibition on double jeopardy because his conviction in his 2006 case subjected him to a higher sentencing range is without merit.
See Witte v. United States, 515 U.S. 389, 400 (1995); State v. Carlson, 560 P.2d 26, 31 (Alaska 1977).
Conclusion
For the reasons discussed in this opinion, the order of the superior court denying Thompson's motion to correct an illegal sentence is AFFIRMED.