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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,
                                                      Court of Appeals No. A-11473
                            Appellant,               Trial Court No. 3AN-10-4009 CR

                     v.
                                                                OP INION
JAMES R. SEIGLE,
                                                       No. 2545 — March 17, 2017
                            Appellee.


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Philip R. Volland, Judge, and the Statewide Three-
              Judge Panel, Eric Smith, John Suddock, and Trevor N.
              Stephens, Judges.

              Appearances: Donald Soderstrom, Assistant Attorney General,
              Office of Criminal Appeals, Anchorage, and Michael C.
              Geraghty, Attorney General, Juneau, for the Appellant; Shelley
              K. Chaffin, Law Office of Shelley K. Chaffin, Anchorage, for
              the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
              District Court Judge. *

              Judge ALLARD.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
                 James R. Seigle was convicted of first-degree sexual assault1 for coercing
his girlfriend to engage in oral sex. We affirmed Seigle’s conviction in a previous
decision.2 The present appeal deals with Seigle’s sentence.
                 As a first felony offender, Seigle faced a presumptive term of 20 to 30 years
for this crime.3 At sentencing, Superior Court Judge Philip Volland found two bases for
referring Seigle’s case to the statewide three-judge sentencing panel. First, Judge
Volland concluded that Seigle had proved the non-statutory mitigating factor of
extraordinary potential for rehabilitation. Second, Judge Volland concluded that it would
be manifestly unjust to impose a sentence within the applicable presumptive range in
Seigle’s case.
                 At the time of sentencing, Seigle was fifty-four years old and employed.
He had a single prior criminal conviction — a misdemeanor conviction in California
from more than ten years ago for “false personation.” In his sentencing remarks, Judge
Volland (who had also been the trial judge) expressed his confidence that the events
recounted at Seigle’s trial were “one-time events, most likely never to be repeated,” and
that the sentencing goal of rehabilitation was already satisfied, in the sense that Seigle’s
criminal behavior would not happen again.4
                 Judge Volland concluded that Seigle was the type of defendant that “the
non-statutory mitigator [of extraordinary potential for rehabilitation] is intended to
recognize.” The judge further found that manifest injustice would result if Seigle
received a sentence within the presumptive range of 20 to 30 years. The judge expressed

   1
       AS 11.41.410.
   2
       Seigle v. State, 2016 WL 5172623 (Alaska App. June 22, 2016) (unpublished).
   3
       See AS 12.55.125(i)(1)(A)(ii).
   4
       See, e.g., Kirby v. State, 748 P.2d 757, 766 (Alaska App. 1987) (“Rehabilitation
potential is [] the converse of dangerousness.”).

                                              –2–                                        2545

his opinion that “a 10-year sentence [would be] enough,” given the facts of this case and
given Seigle’s history and individual characteristics. However, Judge Volland did not
have the authority to impose such a sentence, so he referred Seigle’s case to the three-
judge sentencing panel, which does have that authority.5
              At the conclusion of the sentencing proceedings before the three-judge
panel, the panel rejected Seigle’s proposed non-statutory mitigating factor of
extraordinary potential for rehabilitation. But the panel agreed with Judge Volland that
it would be manifestly unjust to sentence Seigle to a term of imprisonment within the 20­
to 30-year presumptive range. The panel ultimately sentenced Seigle to 20 years with
5 years suspended (15 years to serve) — a sentence that the panel independently found
was “appropriate under the Chaney criteria.”6
              In reaching its sentencing decision, the three-judge panel relied in part on
this Court’s decision in Collins v. State.7 Because of the three-judge panel’s reliance on
Collins, the State now challenges Seigle’s sentence as illegal.8
              As we explain more fully in this opinion, the State contends that our
decision in Collins was “never the law in Alaska” — and that, because the three-judge
panel relied on Collins when it sentenced Seigle, Seigle’s sentence is so fundamentally
flawed that the double jeopardy clause of the Alaska Constitution does not protect it from
reversal on appeal.


   5
       See AS 12.55.165 & AS 12.55.175.
   6
     See Chaney v. State, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005 (codifying the
Chaney criteria).
   7
       287 P.3d 791 (Alaska App. 2012).
   8
        We note that Seigle was also convicted of fourth-degree assault for conduct related
to the same incident. The three-judge panel imposed 30 days for that crime. Seigle did not
appeal that conviction in his direct appeal and the State did not cross-appeal that sentence.

                                            –3–                                         2545

              For the reasons explained in this opinion, we reject the State’s arguments
and we affirm Seigle’s sentence.


        Our decision in Collins v. State
              To explain the State’s claim that our decision in Collins was “never the law
in Alaska,” we must first describe the substance and the procedural history of that
decision.
              In 2006, the Alaska Legislature greatly increased the penalty ranges for all
sexual felonies — based in part on the presumptions that a person convicted of a sex
offense typically had a history of other undisclosed sex offenses and that a person
convicted of a sex offense typically had unusually poor prospects for rehabilitation.9 In
Collins, this Court concluded (by a two-to-one vote) that, because these legislative
presumptions might not be true in a particular defendant’s case, a defendant convicted
of a sex offense should be given the opportunity to show (by clear and convincing
evidence) that he or she had no history of prior sex offenses, or that he or she had normal
prospects for rehabilitation.10 If a defendant could make these showings, this might
entitle the defendant to have his or her case referred to the statewide three-judge
sentencing panel — the judicial body authorized to impose sentences outside the normal
constraints of presumptive sentencing.11
              Judge Bolger dissented from the decision in Collins. In his dissent, Judge
Bolger argued that it was illogical to conclude that manifest injustice exists when a
felony sex offender with moderate prospects for rehabilitation is sentenced to a term of



   9
        Collins, 287 P.3d at 795-97.
   10
        Id.
   11
        Id.

                                           –4–                                        2545

imprisonment within the established presumptive ranges because “the legislature
recognized that sex offenses can have a serious impact on the victim and society.” 12
Judge Bolger reasoned that a sex offender with moderate prospects for rehabilitation
“may still pose an unacceptable danger to the community,” and that defendants should
therefore be required to show the same “particularly favorable” prospects for
rehabilitation as other offenders in order to establish a non-statutory mitigating factor
justifying referral to the three-judge sentencing panel.13
               The Collins decision was issued on November 2, 2012. The three-judge
panel held its hearing in Seigle’s case two weeks later.
               By that time, the State had already filed a petition for hearing in the Alaska
Supreme Court, asking that court to review this Court’s decision in Collins.
               On February 12, 2013, about two months after the three-judge panel
sentenced Seigle, the supreme court granted the State’s petition and agreed to review
Collins.14 However, one year later, after the legislature amended the three-judge panel
sentencing statutes in response to Collins, the supreme court dismissed the State’s
petition as improvidently granted.15


        The legislature’s response to Collins
               In the spring of 2013, while the State’s petition for hearing was still
pending before the supreme court, the Alaska Legislature responded to our decision in
Collins by enacting Session Law Act (SLA) 2013, Chapter 43. In section 1(b) of this


   12
        Id. at 798-99 (Bolger, J., dissenting).
   13
        Id. at 799 (Bolger, J., dissenting).
   14
        See Supreme Court File No. S-14966 (Feb. 12, 2013).
   15
        See Supreme Court File No. S-14966 (Feb. 25, 2014).

                                               –5–                                      2545

session law, the legislature declared that it had never intended to create new grounds for
referring a felony sex offender’s case to the three-judge panel:
              (b) The legislature finds that:
                            (1) in 2006, the legislature did not intend,
                     by [enacting increased penalties for sexual
                     felonies], and the legislature does not now
                     intend[,] to create new or additional means for
                     a defendant convicted of a sexual felony and
                     sentenced under AS 12.55.125(i) to obtain
                     referral to a three-judge panel;

                            (2) the legislature did not, in 2006, intend
                     nor does the legislature now intend for a court
                     to create new or additional means for a
                     defendant convicted of a sexual felony and
                     sentenced under AS 12.55.125(i) to obtain
                     referral to a three-judge panel.16

In section 1(c) of this session law, the legislature further declared that it intended to
overturn the majority decision in Collins and to endorse the position expressed in Judge
Bolger’s dissenting opinion:
              (c) It is the intent of the legislature in AS 12.55.165, as
              amended by sec. 22 of this Act, and AS 12.55.175, as
              amended by sec. 23 of this Act, to overturn the majority
              decision in Collins v. State, 287 P.3d 791 (Alaska App.
              2012), and to endorse the dissenting opinion in the same
              case.17

              To effect this legislative intent, the legislature amended AS 12.55.165 (the
statute governing referrals to the three-judge panel) by addingsubsection (c) that restricts
a sentencing judge’s authority to refer a case to the panel:




   16
        Ch. 43, § 1, SLA 2013.
   17
        Id.

                                            –6–                                        2545

                     (c) A court may not refer a case to [the] three-judge
              panel ... if the defendant is being sentenced for a sexual
              felony under AS 12.55.125(i) and the request for the referral
              is based solely on the claim that the defendant, either singly
              or in combination, has
                     (1) prospects for rehabilitation that are less than
              extraordinary; or
                     (2) a history free of unprosecuted, undocumented, or
              undetected sexual offenses.
At the same time, the legislature enacted a corresponding amendment to AS 12.55.175
(the statute defining the authority of the three-judge panel) by adding subsection (f).
This new subsection states in pertinent part:
                     (f) A defendant being sentenced for a sexual felony
              under AS 12.55.125(i) may not establish, nor may the
              three-judge panel find under (b) of this section or any other
              provision of law, that manifest injustice would result from
              imposition of a sentence within the presumptive range based
              solely on the claim that the defendant, either singly or in
              combination, has
                     (1) prospects for rehabilitation that are less than
              extraordinary; or
                     (2) a history free of unprosecuted, undocumented, or
              undetected sexual offenses.
              These new laws went into effect on July 1, 2013, more than seven months
after Seigle was sentenced in this case. The following February, the Alaska Supreme
Court dismissed the State’s petition for hearing in Collins as improvidently granted.18


        The State’s argument that Collins was never the law in Alaska
              As we explained earlier in this opinion, the State takes the position that
Seigle’s sentence is illegal because, when the three-judge panel sentenced Seigle, the


   18
        See Supreme Court File No. S-14966 (Feb. 25, 2014).

                                          –7–                                       2545

panel relied in part on this Court’s decision in Collins and, according to the State, our
decision in Collins was never the law in Alaska.
              The State’s argument that Collins was never the law in Alaska hinges on
its contention that this Court’s published decisions have no precedential value until this
Court’s judgment “takes effect” under Alaska Appellate Rules 507(b) and 512(a) — that
is, until any petition for hearing to the Alaska Supreme Court is resolved and jurisdiction
returns to the trial court.
              Appellate Rule 507(b) declares that, unless this Court orders otherwise, a
judgment issued by this Court “takes effect and full jurisdiction returns to the trial court
on the day specified in Rule 512(a) for return of the record [to the trial court].”
Appellate Rule 512(a) defines when the record on appeal is returned to the trial court at
the conclusion of an appeal. Subsection (a)(2) of this rule states that, in Court of Appeals
cases where a party petitions the supreme court to review our decision, the record on
appeal shall be returned to the trial court on the day after the petition for hearing is
denied or, if the petition is granted, on the day after the time expires for seeking
rehearing of the supreme court’s decision on the merits.
              The State argues that, under Rules 507(b) and 512(a), this Court’s decision
in Collins never took effect. Here is the State’s reasoning:
              When this Court issued Collins, the Court did not exercise our authority
under Rule 507(b) to declare that our decision in Collins would take effect on some date
other than the date established by Rules 507(b) and 512(a). Thus, our judgment in
Collins took effect on the date established in Rule 512(a) for return of the record to the
trial court. Moreover, because the State filed a petition for hearing in Collins, and
because the supreme court initially granted that petition, the time for returning the record
to the trial court did not arrive until February 26, 2014 — the day after the supreme court
dismissed the State’s petition as improvidently granted. And by that time (indeed,


                                           –8–                                         2545

months before that time), the Alaska Legislature had enacted SLA 2013, chapter 43,
which amended AS 12.55.165 and AS 12.55.175 in response to Collins.
               Thus, the State concludes, our judgment in Collins never took effect
because the effect of our judgment was stayed until late February 2014 and because the
legislature amended the pertinent sentencing statutes effective July 1, 2013.


        Why we reject the State’s argument
               To explain why we reject the State’s argument, we must explain the
difference between an appellate court’s “judgment” in a particular case (what used to be
called its “mandate” to the lower court) and an appellate court’s “opinion” — that is, the
court’s decision as a generally applicable statement about the law.19
               Alaska law formerly required an appellate court to issue a “mandate” at the
conclusion of any appellate proceeding.20 This “mandate” performed two functions: it
contained the appellate court’s directions to the lower court and it was the order that
formally returned jurisdiction over the case to the lower court.21



   19
        See Malutin v. State, 198 P.3d 1177, 1182 (Alaska App. 2009) (explaining, in the
context of the former version of Appellate Rule 507, that “the appellate court’s opinion was
its statement of the law, while the appellate court’s mandate was its order returning
jurisdiction over the case to the lower court, and directing the lower court to perform
whatever actions were necessary or proper to carry out the appellate court’s decision in that
particular case”) (emphasis in original).
   20
        Id. at 1181.
   21
        See id. (“[T]he mandate is the appellate court’s order to the lower court, directing the
lower court to take whatever further action is necessary and/or appropriate in light of the
appellate court’s decision. The ‘spreading’ of the mandate is the act that formally returns
jurisdiction over the case to the lower court.”) (citing 16A Charles Alan Wright, Arthur R.
Miller, & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction and Related
Matters § 3987, at 735–36 (3d ed. 1999)).

                                             –9–                                           2545

               In 1983, the Alaska Appellate Rules were revised, and the requirement of
a mandate was eliminated. Appellate Rule 507(a) was revised to make it clear that “[t]he
opinion of the appellate court ... shall constitute its judgment, and shall contain its
directions to the trial court, if any. No mandate shall be issued.”
               At the same time, Appellate Rules 507(b) and 512(a) were amended to their
current form, to clarify when the court’s judgment (i.e., its directions to the lower court
in that particular case) became effective. Thus, when Rule 507(b) speaks of the date on
which an appellate court’s judgment “takes effect,” it is referring to the date on which
the court’s decision takes effect in the particular case being appealed. Rule 507(b) does
not govern when an appellate court’s decision becomes precedent as a matter of law —
that is, it does not govern when the appellate court’s statements about the law become
binding on lower courts (and on the appellate court itself, under the doctrine of stare
decisis).
               To answer the question of when an opinion of this Court becomes legal
precedent for purposes of the lower courts (and for this Court), one must consult the
statutes creating the Court of Appeals and defining its jurisdiction. Alaska Statute
22.07.020(g) expressly declares that the decisions of this Court are binding precedent
until such time as they are affirmatively superseded by a decision of the Alaska Supreme
Court:
               A final decision of the court of appeals is binding on the
               superior court and on the district court unless superseded by
               a decision of the supreme court.22



   22
       See also AS 22.07.030 (“In this section, ‘final decision’ means a decision or order,
other than a dismissal by consent of all parties, that closes a matter in the court of appeals.”);
Alaska R. App. P. 302(a) (“‘Final decision’ includes any decision or order of the court of
appeals, other than a dismissal by consent of all parties, which closes a matter in the court
of appeals, whether or not it contemplates further proceedings in a trial court.”).

                                              – 10 –                                         2545

              Thus, pursuant to this statute, if this Court formally publishes our decision
in a case, the statements of law in that case are precedent, binding on the trial courts,
unless and until those statements of law are superseded by a decision of the Alaska
Supreme Court.
              Alaska Statute 22.07.020(g) codifies the principle of vertical stare decisis,
under which lower courts are required to follow the precedent of higher courts.23 The
statute is also in accord with the rule followed in most other jurisdictions — the rule that
statements of law in a published decision of an intermediate appellate court must be
followed unless and until they are overruled by a higher court.24

   23
       See Auto Equity Sales, Inc. v. Super. Ct. of Santa Clara Cty., 369 P.2d 937, 939-40
(Cal. 1962) (“Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction
are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the
doctrine of stare decisis makes no sense. ... It would create chaos in our legal system if these
courts were not bound by higher court decisions.”).
   24
        See, e.g., Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980) (“[T]he decisions of the
district courts of appeal represent the law of Florida unless and until they are overruled by
this Court.”); State Farm Fire & Casualty Co. v. Yapejian, 605 N.E.2d 539, 540 (Ill. 1992)
(“A decision of the appellate court, though not binding on other appellate districts, is binding
on the [trial] courts throughout the State.”); Placido v. Citizens Bank & Trust Co., 379 A.2d
773, 779 (Md. App. 1977) (“Trial courts are bound by the decisions of the Court of Appeals,
until they may be overruled. Until then they are precedents to be followed and obeyed.”);
Tebo v. Havlik, 343 N.W.2d 181, 185 (Mich. 1984) (“A decision by any panel of the Court
of Appeals is, therefore, controlling statewide until contradicted by another panel of the
Court of Appeals or reversed or overruled by this Court. While the possibility of reversal or
contradiction may lessen a claim of reliance, it does not preclude it.”) (internal citations
omitted); State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010) (stating that the court of
appeals and district courts are “bound by supreme court precedent and the published opinions
of the court of appeals”); State v. Nichols, 600 N.W.2d 484, 487 (Neb. App. 1999)
(criticizing lower court for failing to abide by court of appeals decision and noting that
Nebraska lawrequires trial judges to follow the published opinions of the intermediate court
of appeals “until they are modified or overruled by the Supreme Court”); see also Cal. Ct.
R. 8.1115(d) (published opinion may be cited or relied on as soon as it is certified for
                                                                                 (continued...)

                                             – 11 –                                         2545

              The Alaska cases cited by the State in its cross-appeal do not dictate a
contrary result. All of those cases involve the question of when the judgment — i.e., the
mandate — of this Court takes effect for purposes of determining an individual
defendant’s rights or obligations. Those cases do not address the issue of when a
published decision becomes precedential law, binding on the lower courts.25
              Moreover, the State’s interpretation of Rule 507(b) — i.e., its contention
that Rule 507(b) governs the date on which an appellate court’s decision becomes
precedent — is undercut by the very wording of the rule. Rule 507(b) begins with the
clause “[u]nless the [appellate court’s] opinion or order expressly states otherwise.” This
clause authorizes an appellate court to specify a different date on which its judgment
takes effect in that particular case. Giving an intermediate appellate court this authority

   24
        (...continued)
publication or ordered published); Mich. Ct. R. 7.215(C)(2) (“A published opinion of the
Court of Appeals has precedential effect under the rule of stare decisis. The filing of an
application for leave to appeal to the Supreme Court or a Supreme Court order granting leave
to appeal does not diminish the precedential effect of a published opinion of the Court of
Appeals.”). See generally 21 C.J.S. Courts § 202 (“[T]he decision of an intermediate
appellate court is the law of the jurisdiction until it is reversed or overruled by the court of
last resort”) (citing cases). But see Kan. Sup. Ct. R. 8.03(j) (stating that, pursuant to Kansas
court rules, a decision by a Kansas intermediate court is not binding on parties or the district
courts “pending the determination of the Supreme Court on the petition for review or during
the time in which to file a petition for review,” although the decision can be cited for its
persuasive value).
   25
       See, e.g., Alex v. State, 210 P.3d 1225, 1227 (Alaska App. 2009) (determining when
judgment of Court of Appeals became final for purposes of deadline for filing post-
conviction relief application); Murray v. State, 1990 WL 10509487, at *2 (Alaska App. Nov.
21, 1990) (unpublished) (determining date that Court of Appeals judgment takes effect for
purposes of Criminal Rule 45 speedy trial calculation); Nitz v. State, 745 P.2d 1379,1380-81
(Alaska App. 1987) (determining when judgment of Court of Appeals became final for
purposes of Criminal Rule 45 speedy trial calculation); see also Singletary v. State, 583 P.2d
847, 849 (Alaska 1978) (calculating time when defendant could file, and trial court could
consider, a motion to reduce sentence as the date jurisdiction returned to superior court).

                                            – 12 –                                         2545

only makes sense if, by using the term “judgment,” Rule 507(b) is referring solely to the
appellate court’s mandate — that is, its directions to the lower court.
              We therefore reject the State’s contention that a published opinion of this
Court has no precedential value while a petition for hearing is pending before the Alaska
Supreme Court.
              Certainly, trialjudges are free to express their reservations about one of our
decisions. And when the supreme court has granted a petition for hearing (thus declaring
that it is actively debating the merits of this Court’s decision), trial court judges may
choose to stay proceedings in front of them until the petition for hearing is resolved and
the long-term precedential effect of this Court’s decision is clarified. But lower courts
are not free to simply ignore the precedent established by this Court, even when a
petition for hearing is pending. Our published decisions are precedent unless and until
the supreme court affirmatively overrules or vacates them.
              Returning to Seigle’s case, the supreme court never overruled this Court’s
decision in Collins, so it was binding precedent on the lower courts until the legislature
amended the sentencing statutes, effective July 1, 2013. Thus, when the three-judge
panel sentenced Seigle in November 2012, Collins was good law and it was not error for
the panel to rely on Collins.


        The State’s argument that the three-judge panel misapplied Collins
              The State also claims that, even if Collins was controlling precedent at the
time of the three-judge sentencing panel’s decision, the panel nevertheless misapplied
Collins. But the State’s argument is based both on a misunderstanding of our decision
in Collins and on a misunderstanding of how sentencing courts should address the
question of manifest injustice in the context of an individual presumptive sentencing
case.


                                           – 13 –                                      2545

              As we have already explained, Collins recognized two non-statutory
mitigating factors that might apply to defendants being sentenced for sexual felonies.26
Under Collins, a defendant being sentenced for a sexual felony could seek referral to the
three-judge panel if the defendant could show by clear and convincing evidence that
either (1) he or she lacked a documented history of prior sex offenses, or (2) he or she
had “normal” prospects for rehabilitation.27
              But Collins did not alter the analysis that a sentencing judge is required to
conduct when a defendant seeks referral to the three-judge panel on the ground that a
sentence within the presumptive range would be manifestly unjust. When a defendant
asserts that a sentence within the applicable presumptive range would result in manifest
injustice, the sentencing judge is required to employ the Chaney criteria to assess the
totality of the circumstances of the defendant’s case, and to then determine whether all
sentences within the applicable presumptive range (as adjusted for any statutory
aggravators and mitigators that the court has found) would be “obviously unfair.”28 The
terms “obviously unfair” and “shocks the conscience” are used interchangeably in our
case law to describe a finding of manifest injustice.29



   26
        Collins v. State, 287 P.3d 791, 795-97 (Alaska App. 2012).
   27
        Id.
   28
        See Duncan v. State, 782 P.2d 301, 304 (Alaska App. 1989).
   29
        See, e.g., Moore v. State, 262 P.3d 217, 221 (Alaska App. 2011); Dancer v.State, 715
P.2d 1174, 1177 (Alaska App. 1986); Lloyd v. State, 672 P.2d 152, 154 (Alaska App. 1983)
(“If a judge believed imposition of a presumptive sentence would be obviously unfair, we
think it highly likely that he would also find that such a sentence would shock his conscience.
Conversely, a judge whose conscience was shocked by the prospect of imposing a
presumptive sentence could be expected to find that the sentence would obviously be
unfair.”).


                                            – 14 –                                        2545

              Because the sentencing court is required to base its conclusion regarding
manifest injustice on the totality of the circumstances (i.e., the facts of the current
criminal episode, plus the history and underlying circumstances of the offender), the
sentencing court’s assessment will often include circumstances that, standing alone,
would be insufficient to warrant a departure from the applicable presumptive sentencing
range. For example, a sentencing judge might reject a defendant’s assertion of
“extraordinary potential for rehabilitation,” but if the defendant has favorable prospects
for rehabilitation, the judge would still consider those favorable prospects as part of the
totality of the circumstances when determining whether a sentence within the
presumptive range would be manifestly unjust under the Chaney criteria. Similarly,
there may be situations where a sentencing judge is legislatively precluded (because of
the existence of certain aggravating factors) from sending the defendant’s case to the
three-judge sentencing panel on the basis of extraordinary potential for rehabilitation.
Nevertheless, if the defendant asserts that any sentence within the applicable presumptive
range would be manifestly unjust as applied to him, the sentencing judge would still be
required to consider the defendant’s potential for rehabilitation as part of the totality of
the circumstances under the Chaney criteria in deciding whether “manifest injustice”
would result from a sentence within the presumptive range in that case.
              We addressed and clarified this very issue in Duncan v. State.30 In Duncan,
this Court was called upon to explain the implications of our earlier decision in Totemoff
v. State.31
              The defendant in Totemoff was convicted of first-degree sexual assault, and
he was subject to a 15-year presumptive term of imprisonment because of a prior



   30
        782 P.2d 301 (Alaska App. 1989).
   31
        739 P.2d 769 (Alaska App. 1987).

                                           – 15 –                                      2545

burglary conviction.32 Totemoff’s sentencing judge concluded that Totemoff’s prior
burglary was “fairly minor ... as felonies go,” and that the de minimis nature of this prior
offense constituted a non-statutory mitigating factor.33       The judge therefore sent
Totemoff’s case to the three-judge panel based on this factor, but the three-judge panel
declined to adjust Totemoff’s sentence, leading to an appeal.34
               In Totemoff’s appeal, we held that it was improper for the sentencing judge
to adopt a non-statutory mitigatingfactor (and to send Totemoff’s case to the three-judge
panel based on that factor) when the legislature had expressly rejected that same factor
for inclusion among the mitigating factors codified in AS 12.55.155(d).35 We noted that
the legislature had originally created a statutory mitigator for defendants whose prior
felonies were of lesser seriousness, but the legislature had later repealed this mitigator
because it could be viewed as rewarding defendants who progressed to more serious
crime over time.36 And we held that, after the legislature has expressly rejected a
particular circumstance for inclusion as a statutory mitigating factor, a sentencing court
can no longer treat this same circumstance as a non-statutory mitigator.37
               The facts of Duncan were similar to the situation presented in Totemoff.
Duncan’s prior felony was a de minimis offense (forging checks in the amounts of $12




   32
        Id. at 770.
   33
        Id. at 773.
   34
        Id. at 773-74.
   35
        Id. at 776-77.
   36
        Id. at 776.
   37
        Id.

                                           – 16 –                                      2545

and $7) and he committed this felony when he was eighteen years old.38 Based on this,
as well as the other circumstances of the case, Duncan’s sentencing judge concluded that
the prescribed presumptive term for Duncan’s current offense would be manifestly
unjust, so the judge referred Duncan’s case to the three-judge panel.39
               But when Duncan’s case was presented to the three-judge panel, the
members of the panel concluded that they had no jurisdiction to sentence Duncan.40 The
panel interpreted Totemoff as absolutely prohibiting them from considering the mitigated
nature of Duncan’s prior offense in any fashion — either as an independent non-statutory
mitigating factor, or even as one of the several circumstances that could be considered
when deciding whether the prescribed presumptive term was manifestly unjust in
Duncan’s case.41 The panel’s ruling on this issue led to an appeal.42
               In our decision in Duncan, we explained that the three-judge panel’s
interpretation of Totemoff was incorrect.43 Totemoff held that the mitigated nature of a
prior felony was not a non-statutory mitigator that, standing alone, could justify a
departure from the prescribed presumptive term.44 But the mitigated nature of a prior
offense nevertheless remained a circumstance that could be considered, in conjunction




   38
        Duncan, 782 P.2d at 301.

   39
        Id.

   40
        Id. at 302.

   41
        Id.

   42
        Id. at 303.

   43
        Id. at 304.

   44
        Id.


                                         – 17 –                                    2545

with the other circumstances of the defendant’s case, when the three-judge panel decided
whether the presumptive term was manifestly unjust as applied to the defendant.45
              As we explained in Duncan, when a sentencing court decides whether a
sentence within the prescribed presumptive range would be manifestly unjust in a
particular defendant’s case, the sentencing court must consider the totality of the
circumstances surrounding the case — includingthe defendant’s background, education,
character, and prior criminal history, as well as the seriousness of the current offense —
in light of the sentencing goals of rehabilitation, deterrence, isolation, and affirmation of
community norms.46 Thus, “[t]he nature and seriousness of an offender’s prior criminal
misconduct are a legitimate part of the totality of the circumstances [to be] considered
in the overall determination of manifest injustice.”47
              We cautioned that “neither an individual sentencing judge nor the
three-judge panel would be justified in basing a finding of manifest injustice entirely or
primarily on the mitigated nature of a prior felony conviction” — because such a finding
“would elevate the mitigated nature of the prior offense to the level of a non-statutory
mitigating factor, thereby subverting the intent of the legislature.”48 But this rule does
not foreclose a sentencing judge, or the three-judge panel, from considering the mitigated




   45
        Id.
   46
       Id.; see State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005 (codifying
Chaney sentencing criteria); see also Alaska Const. Art. I, § 12 (describing the goals of
criminal administration as “the need for protecting the public, community condemnation of
the offender, the rights of victims of crimes, restitution from the offender, and the principle
of reformation”).
   47
        Duncan, 782 P.2d at 304.
   48
        Id.

                                            – 18 –                                        2545

nature of an offender’s prior offense as part of the totality of circumstances to be
weighed when assessing the question of manifest injustice.49
              Our holding in Duncan applies to cases involving the two non-statutory
mitigators recognized in Collins. Because the legislature has expressly overridden our
decision in Collins, neither of the non-statutory mitigators discussed in Collins (a
defendant’s lack of prior sex offenses, or a defendant’s good prospects for rehabilitation)
can be treated as non-statutory mitigators as of July 1, 2013.50 The legislature also made
clear that these two factors, standing alone, are insufficient as a matter of law to justify
a referral to the three-judge sentencing panel under the manifest injustice prong.51
              But this does not mean that these factors play no role in the court’s overall
Chaney analysis; they still remain factors to be considered as part of the larger totality
of the circumstances that the sentencing court must assess in determining whether the
prescribed presumptive range of imprisonment is manifestly unjust in a particular
defendant’s case. Indeed, to conclude otherwise would create obvious due process and
equal protection problems. The Chaney criteria apply to all sentences under Alaska law,
and the legislative intent behind the 2013 amendments to AS 12.55.165 and AS




   49
        Id.
   50
         See AS12.55.165(c) (prohibitinga court from referring a case to the three-judge panel
if the request is “based solely on the claim that the defendant, either singly or in combination,
has (1) prospects for rehabilitation that are less than extraordinary; or (2) a history free of
unprosecuted, undocumented, or undetected sexual offenses”) (emphasis added).
   51
        See AS 12.55.175(f) (prohibiting a finding of manifest injustice “based solely on the
claim that the defendant, either singly or in combination, has (1) prospects for rehabilitation
that are less than extraordinary; or (2) a history free of unprosecuted, undocumented, or
undetected sexual offenses”) (emphasis added).

                                             – 19 –                                         2545

12.55.175 was precisely to ensure that sex offenders were not judged under standards
different than the standards that apply to other offenders.52
              Here, the sentencing judge referred Seigle’s case to the three-judge
sentencing panel based both on a finding of extraordinary potential for rehabilitation and
on a finding that any sentence within the presumptive range would be manifestly unjust.
The three-judge panel rejected the non-statutory mitigating factor of extraordinary
potential for rehabilitation, finding that Seigle only had good potential for rehabilitation.
But the three-judge panel agreed with the sentencing judge that a sentence within the
presumptive range of 20 to 30 years would be manifestly unjust in Seigle’s particular
case.
              The State argues that the three-judge panel erred in considering Seigle’s
good prospects for rehabilitation as part of its larger manifest injustice analysis.
According to the State, once the three-judge panel concluded that Seigle’s prospects for
rehabilitation were insufficient, standing alone, to justify a departure from the
presumptive range, the panel was precluded from considering those good prospects for
rehabilitation for any other purpose — including as part of the totality of the
circumstances that led the panel to conclude that a sentence within the presumptive range
would be manifestly unjust in Seigle’s case.
              But as we have just explained, a determination of whether a particular
sentence will result in manifest injustice must be made under the totality of the
circumstances presented by the defendant’s case. It was therefore appropriate for the
three-judge panel to consider all of the circumstances of Seigle’s case, including those
circumstances (such as Seigle’s age, lack of prior criminal history, and good employment
history) that led to the originalconclusion that he had “good prospects” for rehabilitation.



   52
        See Ch. 43, § 1, SLA 2013.

                                           – 20 –                                       2545

              It was also appropriate for the three-judge panel to consider the legislative
findings that accompanied the 2006 sentencing increases when assessing whether it
would be manifestly unjust to sentence Seigle within the presumptive range.53 These
legislative findings continue to provide guidance to the courts by explaining why the
legislature believed that it was necessary to greatly increase the sentences for these types
of offenders and these types of offenses. Those findings therefore provide the
framework for understanding the legislative intent behind the presumptive ranges for
sexual felonies, and they are a critical tool for the courts in assessing when, in the
legislature’s own words, a case may “cry out for mercy.”54


        The State’sargument that the three-judge panel abdicated its responsibility
        to make an independent manifest injustice finding
              The State’s final argument is that the three-judge sentencing panel failed
to independently consider whether the presumptive sentence would be manifestly unjust
in Seigle’s case. We find no merit to this claim.
              As already mentioned, the sentencing judge in this case, Judge Volland
(who was also the trial judge), found that it would be manifestly unjust to sentence Seigle
to a prison term within the presumptive range. Judge Volland further declared that, in


   53
        See 2006 Senate Journal 2209-12.
   54
        Id. at 2214 (noting that “the criminal justice system often weeds these cases out in the
referral and plea bargaining process” but that “the courts of Alaska will be able to avoid
manifestly unjust sentences in appropriate cases” by applying statutory mitigating factors or
referring cases to the three judge-panel); see also Lloyd v. State, 672 P.2d 152, 154 (Alaska
App. 1983) (“Although the legislature decided to curtail the sentencing discretion of judges
by enacting the highly regimented system of presumptive sentencing, it nevertheless
recognized that cases will inevitably arise in which the subjective judgment of the sentencing
court should take precedence over the objective limits imposed by statute. The manifest
injustice standard and the three-judge sentencing panel were created for such cases.”).

                                             – 21 –                                        2545

his view, a sentence of 10 years to serve would appropriately serve the Chaney criteria
in Seigle’s case. In making this finding, the judge relied in part on his own assessment
of the witnesses and the evidence presented at trial.
              The       three-judge   panel      rejected   Judge   Volland’s     sentencing
recommendation, ultimately sentencing Seigle to serve 15 years. This sentence was five
years below the low end of the applicable presumptive range, but five years more than
what Judge Volland believed was necessary under the Chaney criteria. Although the
three-judge panel’s explanation for its sentence is not as detailed as Judge Volland’s, it
is clear that the panel did not abdicate their responsibility to independently assess the
totality of the circumstances presented in Seigle’s case and to make their own
determination of manifest injustice under the Chaney criteria.
              We further note that even if we had concerns about the three-judge panel’s
assessment of the relative weight of various sentencing criteria, our authority to remedy
any perceived flaws is limited. Seigle did not appeal his sentence, and the State’s right
to appeal a sentence “is limited by the prohibitions against double jeopardy contained in
the United States Constitution and the Alaska Constitution.”55
              Although the State frames its cross-appeal as addressing only the “legality”
of the sentence that Seigle received, many of the State’s arguments are not directed at the
panel’s authority to impose the sentence in this case, but rather at the panel’s exercise of
its sentencing discretion to impose a sentence that the State apparently perceives as too
lenient. Pursuant to AS 22.07.020(b) and (d), the State is entitled to challenge a criminal
sentence on the ground that it is too lenient, but in such cases, this Court has no authority




   55
        AS 22.07.020.

                                              – 22 –                                    2545

to revise the defendant’s sentence. We are limited to issuing an advisory opinion
disapproving the sentence.56
              Here, the three-judge panel concluded, after considering permissible
factors, that manifest injustice would result from imposition of a sentence within the
presumptive range. The three-judge panel was therefore authorized under former
AS 12.55.175 to impose the sentence that it did.
              To the extent that the State seeks to challenge Seigle’s sentence as illegal,
we conclude that the challenge has no merit. And to the extent that the State seeks to
challenge Seigle’s sentence as overly lenient, we likewise conclude that the challenge has
no merit. Having independently reviewed the sentencing record in this case, we
conclude that the findings of the trial judge and the three-judge panel are well-supported
by the record, and that the sentence Seigle received was not clearly mistaken.57


        Conclusion
              The sentencingdecision of the three-judge sentencingpanelis AFFIRMED.




   56
        AS 22.07.020(b); see also Forster v. State, 236 P.3d 1157, 1173 (Alaska App. 2010).
   57
        See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

                                           – 23 –                                     2545

