Fry v. StateFry v. State
- Reporters:
- ,
- Before:
- Bryner
OPINION
BRYNER, Chief Judge.
Clifford Fry was convicted by a jury of misconduct involving weapons in the first degree, a violation of
The initial argument advanced by Fry is that he should not have been subjected to presumptive sentencing as a second felony offender. Fry asserts that, because his pri- or felony conviction was an essential element of the crime for which he was convicted and sentenced in this case, 1 it is improper to rely upon the same conviction a second time, by using it as the basis for imposing a presumptive term for the purpose of enhancing his sentence. We reject the position advocated by Fry.
(e) A defendant convicted of a class C felony may be sentenced to a definite term of imprisonment of not more than five years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS 12.55.155 — 12.55.175:
(1) If the offense is a second felony conviction, two years....
Provisions relevant to interpretation of
Prior Convictions, (a) For purposes of considering prior convictions in imposing sentence under this chapter [AS 12.55]
(1) A prior conviction may not be considered if a period of seven or more years has elapsed between the date of the defendant’s unconditional discharge on the immediately preceding offense and conviction of the present offense.
In the present case, it is undisputed that Fry was convicted of a felony in 1974 and that his unconditional discharge from that conviction occurred within seven years of his current offense. Thus, under AS 12.55.-145(a)(1), Fry’s 1974 conviction qualified as a prior felony under the presumptive sentencing statutes. Since Fry had previously been convicted of a felony within the meaning of
This statutory framework is, in our view, clear and unambiguous; its direct applicability to Fry’s case seems apparent. The presumptive sentencing statutes applicable to Fry leave little room for judicial interpretation and make no exception for cases in which the prior conviction relied upon for application of presumptive sentencing is also a necessary element of the present offense. The plain meaning of AS 12.55.-125(e)(1), when read in conjunction with
Fry nevertheless contends that the statutory provisions applicable to his case are rendered ambiguous by the language of
(e) If a factor in aggravation [of a presumptive term] is a necessary element of the present offense, that factor may not be used to aggravate the presumptive term.
Fry maintains that, since
The presumptive sentencing provisions of the Revised Criminal Code, contained inAS 12.55.125 and 12.55.155, thus reflect the legislature’s intent to assure predictability and uniformity in sentencing by the use of fixed and relatively inflexible sentences, statutorily prescribed for persons convicted of second or subsequent felony offenses.
Under the provisions ofAS 12.55.125 , courts sentencing individuals convicted of their first felony offense are not expressly limited in the sentence that can be imposed; thus, much of the traditionally broad discretion to decide what kind of a sentence to impose in each case is retained. For second and subsequent felony offenders, however, the legislature has evidenced a strong resolution to restrict judicial discretion and to assure that, as a general rule, statutorily mandated sentences would be imposed.
Given the fundamental difference in purpose between the general framework of presumptive sentencing, with its focus on uniformity and predictability of sentencing for repeat offenders, and the system of aggravating factors specified in AS 12.55.-155, with its narrower focus on sentence enhancement, the legislature could well have had a substantial and legitimate interest in declining to extend the type of restriction contained in
Fry retained possession of a handgun, which he claimed to have found, over an extended period of time. He apparently carried and used the gun on at least one occasion — during an illegal moose hunt. Despite the fact that the gun was not his, Fry made no appreciable effort to find the owner of the gun. We believe that these factors constitute more than ample justification to reject Fry’s contention that his conduct fell within the mitigating factor set forth in
Fry raises as his final point the contention that the sentencing court improperly increased the statutory presumptive sentence in his case. Prior to sentencing, the state alleged that Fry’s conduct was among the most serious included in the definition of his offense, and therefore aggravated under the provisions of
Fry argues that the sentencing court’s finding of an aggravating factor is not supported by the evidence and was inadequately explained. On appeal, the state concedes that the sentencing court’s explanation of its conclusion that an aggravating factor had been established was insufficient.
See Juneby v. State,
641 P.2d at 846.
See also
The state’s claim that Fry’s conduct was among the most serious within the definition of his offense was based on the assertion that the gun possessed by Fry was not his own and was retained by Fry without permission of its owner, that Fry used the gun for the illegal purpose of shooting a moose out of season, and that Fry retained possession of the gun over a period of about seven months. Having reviewed the entirety of the record, we conclude that the assertions relied upon by the state, although certainly adequate to preclude a finding that Fry’s conduct was among the least serious included in the definition of his offense, fall far short of justifying a conclusion, by clear and convincing evidence, that Fry’s conduct was among the most serious included in the definition of the offense. The sentencing court’s conclusion that the aggravating factor alleged by the state had been established was clearly erroneous. Accordingly, we hold that Fry should properly have been sentenced to the presumptive term of two years prescribed by
The ruling of the superior court imposing presumptive sentencing is AFFIRMED. The sentence is VACATED and this case is REMANDED for entry of an amended judgment consistent with this opinion.
Notes
.
Misconduct involving weapons in the first degree, (a) A person commits the crime of misconduct involving weapons in the first degree if he
(1) knowingly possesses a firearm capable of being concealed on his person after having been convicted of a felony by a court of this state, a court of the United States, or a court of another state or territory....
. Fry has also placed reliance on a number of cases from other states in which enhancement of a sentence as a result of a prior felony conviction has been disapproved when the pri- or conviction was also a necessary element of the crime for which sentence was to be imposed. See, e.g., People v. Edwards, 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995 (1976); State v. Ware, 201 Kan. 563, 442 P.2d 9 (1968); Boulder v. Commonwealth, 610 S.W.2d 615 (Ky.1980); State v. Sanders, 337 So.2d 1131 (La.1976). Courts of other states, however, have reached the opposite conclusion on this issue. See, e.g., People v. Bergstrom, 190 Colo. 105, 544 P.2d 396 (1975); Hollander v. Warden, Nevada State Prison, 86 Nev. 369, 468 P.2d 990 (1970).
We do not find these cases to be of particular assistance in the present case. All of the cited cases construe statutes that differ substantially from the presumptive sentencing provisions of Alaska’s Revised Criminal Code. Specifically, the cases relied upon by Fry involved statutes which expressly included minimum or maximum sentences for first offenders. Attempts by prosecutors to apply habitual offender provisions to enhance the sentences provided for in the statutes thus created a dilemma, since application of habitual criminal provisions to a statute which requires a prior conviction as one