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            IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DAVID JOSEPH THOMAS,
                                                     Court of Appeals No. A-12853
                           Petitioner,              Trial Court No. 3AN-14-8238 CR

                    v.
                                                            O P I N I O N
STATE OF ALASKA,

                           Respondent.                No. 2579 — January 5, 2018


             Petition for Review from the Superior Court, Third Judicial
             District, Anchorage, Kevin M. Saxby, Judge.

             Appearances: Michael T. Schwaiger, Assistant Public Defender,
             and Quinlan Steiner, Public Defender, Anchorage, for the
             Petitioner. Tamara E. De Lucia, Assistant Attorney General,
             Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,
             Attorney General, Juneau, for the Respondent.

             Before: Mannheimer, Chief Judge, and Allard and Wollenberg,
             Judges.

             Judge ALLARD.


             This petition for review involves a superior court’s rejection of a plea
agreement in a murder case. For the reasons explained in this opinion, we grant the
petition and vacate the superior court’s decision. On remand, we direct the superior
court to reconsider the plea agreement with the guidance provided here.
       Underlying facts and procedural history
              In 2014, David Joseph Thomas was indicted for first- and second-degree
murder for the death of his girlfriend, Linda Bower. Thomas confessed that he had killed
Bower — first to his brother and then separately to the police, after turning himself in to
custody.
              According to the parties’ briefing and the presentence report, Thomas was
heavily intoxicated at the time of the murder. Thomas reported having ingested a large
amount of vodka and over-the-counter medication prior to taking Bower to his house to
watch movies. He remembered little of what happened thereafter, although he recalled
waking to find himself strangling Bower and then losing consciousness again. The next
thing he remembered was waking up on the floor of his bedroom, with Bower lying
unmoving on the bed. Thomas attempted mouth-to-mouth resuscitation; then he vomited
and again lost consciousness. After Thomas turned himself in, the police searched the
residence; they found an empty bottle of vodka and vomit in Thomas’s bedroom.
              Thomas accepted responsibility for killing Bower and reached a plea
agreement with the State. Under the terms of this agreement, Thomas would plead guilty
to second-degree murder and he would receive a sentence of 75 years’ imprisonment
with 25 years suspended (50 years to serve).
              At the time of Thomas’s offense, the crime of second-degree murder carried
a mandatory minimum sentence of 10 years and a maximum sentence of 99 years.1 The
crime of first-degree murder carried a mandatory minimum sentence of 20 years and a




   1
     Former AS 12.55.125(b) (2014). In 2016, the legislature increased the mandatory
minimum sentence for both second-degree murder and first-degree murder. The mandatory
minimum sentence for second-degree murder is now 15 years with a maximum of 99 years.

                                           –2–                                       2579

maximum sentence of 99 years.2 In Page v. State, this Court announced a benchmark
sentencing range of 20-30 years to serve for first felony offenders convicted of second-
degree murder.3 This benchmark range can be exceeded for good cause,4 and the parties
agreed that good cause existed here to exceed the Page benchmark.
              At the change of plea hearing, the victim’s parents told the superior court
that they thought Thomas’s sentence under the plea agreement was improperly lenient.
The parents were particularly opposed to the fact that the plea agreement did not contain
a restriction on Thomas’s eligibility to be considered by the Parole Board for release on
discretionary parole. Under AS 33.16.090(b)(1), a defendant convicted of murder is
eligible to be considered for discretionary parole after serving one-third of their active
term of imprisonment.
              After hearing from the parents and the parties, the judge conditionally
accepted Thomas’s guilty plea. But the judge declared that he would defer his final
decision on whether to accept the negotiated sentence until a presentence report was
prepared.
              In a sentencing memorandum submitted to the court, the prosecutor
explained the State’s reasons for entering into the negotiated agreement. With regard to
the level of the charge, the prosecutor explained that, given the evidence of Thomas’s
substantial intoxication, the State would have significant difficulty proving the specific



   2
      Former AS 12.55.125(a) (2014). The mandatory minimum sentence for first-degree
murder is now 30 years with a maximum sentence of 99 years.
   3
        Page v. State, 657 P.2d 850, 855 (Alaska App. 1983). On petition, the State confirms
that Thomas is a first felony offender (although it notes that the trial prosecutor had asserted
that a prior Montana conviction might possibly qualify as a felony under Alaska law).
   4
       See Carlson v. State, 128 P.3d 197, 203-04 (Alaska App. 2006).

                                             –3–                                          2579

intent necessary to convict Thomas of first-degree murder.5 The prosecutor also noted
that Thomas had accepted responsibility for the killing, and that he had turned himself
in and confessed to the crime.
              With regard to the negotiated sentence, the prosecutor characterized the
agreed-upon sentence — 75 years’ imprisonment with 25 years suspended — as the
equivalent of a first-degree murder sentence imposed for a second-degree murder
conviction. The prosecutor also noted that Thomas’s sentence of 50 years to serve far
exceeded the Page benchmark range of 20-30 years.6
              The author of the presentence report agreed with the State that Thomas’s
substantial intoxication played a role in the crime and the author was critical of Thomas’s
failure to address his problems with substance abuse. The presentence investigator also
noted, however, that Thomas’s “grief, guilt, and remorse for his crime appear to be real,”
and that Thomas “does not present as a criminally minded individual, but as a man who
has committed a horrendous criminal act.”
              At the sentencing hearing, Thomas and the State again explained why they
believed that the court should accept the negotiated plea and sentence, and why they
believed that the Chaney criteria were met by a sentence of 75 years with 25 years
suspended in this case. The victim’s parents reiterated their opposition to the negotiated
sentence and their particular opposition to the fact that Thomas would be eligible for
discretionary parole consideration after serving one-third of his sentence.
              The victim’s parents also presented a memorial photo montage of the
victim’s life. This photo montage was set to music played and sung by the victim herself
(the Beatles song, “Blackbird”).


   5
       See AS 11.81.900(a)(2).
   6
       Page, 657 P.2d at 855.

                                           –4–                                       2579

              At the conclusion of this hearing, the superior court judge rejected the
negotiated sentence as too lenient. The judge’s primary reason for rejecting the plea
agreement appears to have been the absence of any restriction on Thomas’s eligibility
for discretionary parole consideration. The judge stated that, in his view, Thomas had
intentionally killed his girlfriend, notwithstanding the evidence of his severe intoxication,
and that Thomas was therefore guilty of the more serious crime of first-degree murder.
The judge further declared that it would “cheapen the crime” if Thomas were eligible to
apply for discretionary parole after serving only one-third of the 50-year active term of
imprisonment provided for in the plea agreement. The judge also indicated his belief that
Thomas should remain in prison until he “aged out” of criminal behavior. According to
the judge, this “aging out” generally happened around 50 years of age.
              This petition followed.


       The various issues raised by the proceedings in this case
              The parties raise several significant legal issues in their pleadings to this
Court. Chief among these issues is the scope of a trial court’s authority to reject a plea
agreement, as well as the standard that a trial court should employ when reviewing a
negotiated plea agreement.
              The State asserts that the trial court’s role in approving or disapproving a
plea agreement is a limited one, circumscribed by considerations of separation of powers
and the court’s more limited knowledge of the case in comparison to the parties. The
State further asserts that a trial court’s assessment of whether an agreed-upon sentence
is too lenient is akin to an appellate court’s assessment of whether a sentence is “clearly




                                            –5–                                        2579

mistaken.”7 That is, the trial court should limit its role to evaluating whether the agreed-
upon sentence is within the permissible range of sentences that a reasonable judge could
impose under the circumstances, rather than determining what the judge would impose
in the first instance.8 The State contends that, in this case, the sentence was well within
that range of permissible sentences that a reasonable judge would impose, and the
superior court therefore should have accepted the plea agreement.
              Thomas separately argues that the court failed to provide adequate reasons
for its rejection of the negotiated sentence, and Thomas asserts that the court’s analysis
of the negotiated sentence reflects a flawed understanding of the Chaney criteria and the
governing law on discretionary parole. Thomas also points to the court’s failure to
compare Thomas’s case to the full range of conduct encompassed by the second-degree
murder statute, and the court’s failure to recognize the negotiated sentence as an
aggravated sentence, well above the Page benchmark.
              Both parties also point to the role that emotion may have played in the
court’s rejection of the plea agreement, and they question the ability of the judge to
neutrally assess the appropriateness of the negotiated sentence in the immediate
aftermath of an emotionally fraught sentencing hearing involving a memorial photo
montage of the victim, set to music.
              We agree with the parties that these are important issues. However, we
conclude that we do not need to resolve all of these issues at this time. Instead, we
conclude that the appropriate course of action at this juncture is to alert the trial court to
the more immediate legal errors in its stated reasons for rejecting the plea agreement, and


   7
       See McClain v. State, 519 P.2d 811, 813 (Alaska 1974); Erickson v. State, 950 P.2d
580, 587 (Alaska App. 1987).
   8
       See Erickson, 950 P.2d at 587.

                                            –6–                                         2579

to remand this case to the trial court for reconsideration of the plea agreement with the
guidance provided here.


       The legal errors that require us to vacate the superior court’s rejection of
       the plea agreement
              As we have explained, one of the judge’s paramount reasons for rejecting
the plea agreement was the fact that Thomas would be statutorily eligible to be
considered for discretionary parole under AS 33.16.090(b)(1) after serving one-third of
his sentence. According to the judge, the sentencing goal of community condemnation
could not be achieved in this case if the normal statutory eligibility requirements for
discretionary parole applied in this case. Here is what the judge said about this matter:
                      The Court: [T]he possibility of parole within 16 years
              of the [commission of the] crime[,] or 14 years from today, ...
              cheapens the crime. ... Alaska is a state in which domestic
              violence leading to murder is an extreme concern. And
              Alaskans demand that these kinds of crimes be properly
              condemned. And my assessment is that the possibility of
              parole before Mr. Thomas reaches the age at which he —
              most people typically age out [—] does not ... adequately
              express the community’s condemnation for his crime.
              This rationale is substantially flawed. When a judge sentences a criminal
defendant and analyzes the need for a special restriction on the defendant’s eligibility for
discretionary parole, the judge must engage in a case-specific analysis of the facts and
circumstances of the particular case and the particular defendant. Here, however, the
judge’s analysis is grounded on the judge’s generalized view of the appropriate sentence
for an entire category of cases — domestic violence murder.
              The judge declared that no defendant in this category should be eligible to
apply for discretionary parole until they “age out” — which, based on the context of the
judge’s remark, appears to be a reference to late middle age. This approach to parole

                                           –7–                                        2579

eligibility is inconsistent with the parole statutes, and it is based on policy determinations
that are entrusted to the legislature, not the judiciary. As we explain in more detail in this
decision, a judge has no authority to impose a more severe parole restriction on a
defendant, untethered from the specifics of the defendant’s case and based solely on the
judge’s belief that the discretionary parole statutes are not sufficiently harsh for that
category of crime.
              Moreover, there was no evidence in the record or presented at the hearings
about when defendants typically “age out” of criminal behavior or why such a
generalized assertion should necessarily apply to Thomas personally. Finally, the
judge’s comment about Thomas’s eligibility for discretionary parole “cheapen[ing] the
crime” strongly suggests that the judge was operating under incorrect legal assumptions
about the procedures for granting discretionary parole and the circumstances under
which discretionary parole is actually granted to defendants like Thomas.
              There are two different kinds of parole under Alaska law — mandatory
parole and discretionary parole. Discretionary parole is, as the term suggests, entirely
at the discretion of the Alaska Parole Board.9
              Under AS 33.16.090(b)(1), defendants such as Thomas who are sentenced
for murder become eligible to be considered for discretionary parole after they have
served one-third of their active term of imprisonment or the applicable mandatory
minimum sentence, whichever is greater.10 Because the plea agreement in Thomas’s case


   9
        The Parole Board is a five-member board appointed by the governor, and subject to
confirmation by a majority of the legislature in joint session. See AS 33.16.020(a). Parole
Board members are generally persons with significant law enforcement and corrections
backgrounds. See, e.g., Alaska Dep’t. of Corrections, Parole Board,
http://www.correct.state.ak.us/parole-board/members (last visited No. 15, 2017).
   10
        AS 33.16.090(b)(1).

                                            –8–                                         2579

called for 50 years of active imprisonment (with 25 more years suspended), Thomas
would become eligible to be considered for discretionary parole by the Alaska Parole
Board after he served one-third of that 50-year sentence — that is, after he served 16
years and 8 months.
              But eligibility to be considered for discretionary parole does not mean that
the defendant will be granted discretionary parole at that point in time, or at any later
point in time. Under AS 33.16.100(a), the Parole Board is authorized to grant a
defendant discretionary parole only if it affirmatively finds that (1) the prisoner will live
and remain at liberty without violating any laws or conditions imposed by the board; (2)
the prisoner’s rehabilitation and reintegration into society will be furthered by release on
parole; (3) the prisoner will not pose a threat of harm to the public if released on parole;
and (4) release of the prisoner on parole would not diminish the seriousness of the
crime.11
              Additionally, the victims of the crime (which includes family members of
a victim who was murdered) have the right to be present at any Parole Board meeting in
which discretionary parole of the defendant is considered.12 The victims also have the
right to submit oral or written comments.13
              Because release on discretionary parole is so difficult to obtain, a
sentencing judge is not permitted to consider a defendant’s eligibility for discretionary




   11
        AS 33.16.100(a).
   12
       See AS 33.16.120(c); AS 33.16.900(15) (in this chapter, “victim” has the meaning
given in AS 12.55.185); AS 12.55.185(19)(C).
   13
        AS 33.16.120(c).

                                            –9–                                        2579

parole as a factor that is likely to reduce the jail time that the defendant will actually
serve.14
              In his initial comments, the judge acknowledged this governing law, noting
that he was “not permitted to assume what the parole board would do.” But the
remainder of the judge’s analysis indicates that this awareness was not meaningfully
integrated into the judge’s reasons for rejecting the proposed plea agreement.
              For example, the judge rejected the negotiated sentence, in part, because he
believed that allowing Thomas to be considered for discretionary parole under the
statutory framework created by the legislature would “cheapen the crime.” But, as just
explained, the Parole Board is statutorily required to consider the “seriousness of the
crime” when it evaluates a defendant for possible release on discretionary parole, and the
Parole Board is prohibited from releasing a defendant on discretionary parole if such a
release will “diminish the seriousness of the crime.”15 The judge’s comment about
Thomas’s eligibility for discretionary parole “cheapen[ing] the crime” therefore strongly
suggests that the judge was either unaware of this statutory requirement or that the judge
erroneously believed that the Parole Board would fail to meet its statutory duty to
consider the seriousness of the crime when deciding whether to release Thomas on
discretionary parole.16 The judge’s comment also suggests that, despite the judge’s


   14
       See Jackson v. State, 616 P.2d 23, 24-25 (Alaska 1980) (recognizing that “the
assumption that an offender will be paroled on a particular date is, at best, speculative” and
instructing sentencing judges to assume that the defendant will serve the entire term of his
imprisonment without release on discretionary parole when determining the proper length
of a defendant’s sentence).
   15
        See AS 33.16.100(a)(4).
   16
       Cf. Newell v. State, 771 P.2d 873, 877 (Alaska App. 1989) (reversing sentencing
judge’s restriction of defendant’s parole as unsupported by the necessary findings and as
“appear[ing] to imply a distrust of the parole board’s ability to do its job”).

                                           – 10 –                                       2579

claims to the contrary, the judge was viewing Thomas’s initial parole eligibility date as
essentially equivalent to the date on which Thomas would be granted discretionary
parole.
              Certainly, if the individual facts of a particular case warrant it, a sentencing
judge does have the authority under AS 12.55.115 to further restrict a defendant’s
eligibility for discretionary parole beyond the normal statutory default. But as the Alaska
Supreme Court reaffirmed in Korkow v. State, a judge’s decision to restrict parole
eligibility in a particular case must be supported by “expressly articulated reasons” —
reasons that are case-specific, and that are backed by substantial evidence in the record.17
The judge’s decision must also be based on the Chaney criteria — with the recognition,
as the Alaska Supreme Court noted, that “the most relevant factors often will be public
safety and potential for rehabilitation.”18
              Here, the judge failed to provide any case-specific reasons for his
conclusion that a restriction on discretionary parole was required in this case. Instead,
the judge improperly relied on a generalized assumption about criminal defendants and
his apparent disagreement with the sentencing scheme governing Thomas’s case. In
particular, the judge relied on what appears to be a generalized assumption about the age
in which criminal defendants purportedly “age out” of their criminal behavior.
Significantly, the judge did not provide any scientific, statistical, or other authority to
support his assertion about when offenders typically “age out.” Nor did the judge
articulate any reason why he believed that this generalized assertion would necessarily
apply to Thomas personally.



   17
        State v. Korkow, 314 P.3d 560, 565 (Alaska 2013).
   18
        Id.

                                              – 11 –                                    2579

              We note that courts in other jurisdictions have been particularly critical of
sentencing judges using these types of generalized assumptions, untethered to the
specific facts of an individual case and an individual defendant. In People v. Fisher, for
example, the Michigan Court of Appeals reversed a sentence that was based on this type
of speculative assumptions about when a defendant is “beyond the age of violence,” and
the court strongly criticized the sentencing judge’s reliance on this rationale as “totally
inappropriate” and “antithetical” to the purpose of individualized sentencing and uniform
sentencing guidelines.19
              Here, the judge provided no support for his generalized assumptions about
for when criminal defendants typically “age out”; nor did he provide any reason for why
he believed such generalized assumptions would apply to Thomas in particular. Instead,
the judge’s comments focused on the widespread occurrence of domestic violence in
Alaska and the need for community condemnation of murders that occur within that
context. The judge’s comments also indicated that he believed no sentence for this type
of crime could adequately express the community’s condemnation of a domestic violence
murder if that sentence allowed for the possibility of parole before the defendant “ages
out.”
              By declaring that the sentencing goal of community condemnation required
a special discretionary parole restriction for any young or middle-aged defendant
convicted of murdering their spouse or domestic partner, the judge was essentially
voicing his disagreement with the legislative policy decisions underlying the provisions
of AS 33.16.090(b)(1). In other words, rather than making an individualized sentencing
determination about parole eligibility based on the facts of Thomas’s specific case, the



   19
        People v. Fisher, 439 N.W.2d 343, 344 (Mich. App. 1989).

                                          – 12 –                                     2579

judge was voicing his disapproval of the sentencing framework enacted by the legislature
for murder defendants in general. This was improper.
               While a sentencing judge has the authority to impose a greater restriction
on parole eligibility based on the facts of a particular case, a judge has no authority to
impose enhanced parole restrictions on an entire category of defendants based on his
belief that the parole statutes are not strict enough for that type of crime. Such
sentencing policy decisions are entrusted to the legislature.20
               The judge’s error in this case is akin to the type of judicial error that can
occur in the context of presumptive sentencing. As we have explained in previous cases,
the statutory presumptive ranges of imprisonment represent the legislature’s
determination of the appropriate sentencing ranges for a typical offender committing a
typical offense within that category of offenses.21 A sentencing judge has no authority
to depart from those presumptive ranges unless the specific facts of the individual case
and the individual offender warrant such a departure.22
               Thus, a sentencing judge may exceed the applicable presumptive range only
if a statutory aggravating factor is found and the judge determines that the Chaney
criteria cannot otherwise be met by a sentence within the presumptive range.23 Likewise,
the judge may impose a sentence lower than the presumptive range only if a mitigating


   20
        See Leuch v. State, 633 P.2d 1006, 1012-13 (Alaska 1981) (“[J]udgments as to the
extent to which the community condemns a particular offense are more properly made in the
legislative [arena] than by the judiciary.”).
   21
       See Beltz v. State, 980 P.2d 474, 480 (Alaska App. 1999); see also Leuch, 633 P.2d
at 1012-13.
   22
        Beltz, 980 P.2d at 480.
   23
        AS 12.55.155(c).

                                           – 13 –                                     2579

factor is found.24 (The judge may also refer the case to the three-judge sentencing panel
based on non-statutory mitigating factors or a finding that manifest injustice would result
from imposition of a sentence within the presumptive range on that particular offender.25)
But judges have no authority to depart from the presumptive range based on their
disagreement with the legislature’s decision concerning the appropriate presumptive
range for that offense.
               As we explained in Beltz v. State:
               A presumptive term cannot be “manifestly unjust” in general.
               It can only be “manifestly unjust” as applied to a particular
               defendant. Before a sentencing judge can properly charac­
               terize a presumptive term as “manifestly unjust”, the judge
               must articulate specific circumstances that make the
               defendant significantly different from a typical offender
               within that category or that make the defendant’s conduct
               significantly different from a typical offense.26
               This same principle applies to the present case. The legislature has
established rules that govern parole eligibility for offenders convicted of murder. A
sentencing judge is not allowed to impose more severe parole restrictions on all murder
defendants who kill their spouses or domestic partners based on the judge’s belief that,
as a general matter, Alaska’s parole eligibility rules do not satisfy the sentencing goal of
community condemnation for that type of crime or this group of offenders.
               Nor can a sentencing judge’s decision to restrict parole eligibility be based
on the judge’s generalized view that criminal defendants will continue to commit crimes


   24
        AS 12.55.155(d).
   25
      AS 12.55.165; AS 12.55.175; see also State v. Seigle, 304 P.3d 627, 635-638 (Alaska
App. 2017).
   26
        Beltz, 980 P.2d at 480.

                                           – 14 –                                     2579

until they reach a certain age, or on the judge’s unsupported belief that the Parole Board
will fail to fulfill its statutory obligations to properly screen applications for discretionary
parole.


       Conclusion
              For the reasons explained here, we GRANT Thomas’s petition for review,
and we VACATE the superior court’s rejection of the proposed plea agreement. We
direct the superior court to reconsider this matter in light of what we have said in this
opinion. We do not retain jurisdiction of this case.




                                            – 15 –                                        2579

