State v. MalloyState v. Malloy
- Reporters:
- , ,
- Before:
- Bryner
OPINION
BRYNER, Justice.I. INTRODUCTION
Under
II FACTS AND PROCEEDINGS
A jury convicted Maureen Alice Malloy of first-degree murder, kidnapping, and tampering with evidence.
1
Before sentencing, the state gave notice that it would seek a sentence under
In response to the state‘s notice, Malloy challenged the statute as unconstitutional because it did not require the state to charge the statutorily specified aggravating cireum-stance-substantial physical torture-as an element of the offense or to prove it beyond a reasonable doubt to the jury.
Superior Court Judge Elaine M. Andrews rejected Malloy‘s constitutional challenge and, after finding by clear and convincing evidence that Malloy had subjected her vie-tim to substantial physical torture, imposed the mandatory sentence under
Malloy appealed, and the court of appeals affirmed her convictions and sentences except for the sentencing provision that made Malloy ineligible for discretionary parole until she completed serving her term for first-
The state petitioned for hearing, challenging the court of appeals‘s decision declaring
III. DISCUSSION
A. Standard of Review
Constitutional issues present questions of law, which we review de novo. 6 In ruling on questions of law we “adopt the rule that is most persuasive in light of precedent, reason, and policy.” 7
B. Statutory Background
Like the mandatory sentence specified by
C. The Court of Appeals‘s Decision
Upon considering the present case in light of these statutory provisions, the court of
In reaching this ruling, the court of appeals relied primarily on Donlun v. State, 14 a case decided by the Alaska Supreme Court in 1974. 15 Donltun involved an offender convicted under Alaska‘s former burglary statute, which authorized three different maximum burglary sentences: ten years for an ordinary burglary, fifteen years for a burglary committed at night, and twenty years for a burglary in an occupied dwelling. 16 Although Donlun‘s indietment failed to allege either of the statutorily specified aggravating ciream-stances, the evidence at trial indicated that he had committed his offense in an occupied dwelling at night. The trial court thus explicitly based Donlun‘s sentence on the premise that he was subject to a maximum term of twenty years. 17
Donlun appealed, challenging the. superior court‘s sentencing premise. This court reversed, holding “that where a eriminal statute provides for graded or enhanced ranges of punishments for aggravated instances of the proscribed offense, an indictment charging the offense must specify the aggravating facts before the defendant can be exposed to an increased range of punishment.” 18 We grounded this conclusion on general principles of fairness and notice, without saying whether it was constitutionally based: “We believe that if a defendant is to be afforded a fair opportunity to defend against a burglary charge involving aggravated cireumstances, such cireumstances must be set forth in the indictment ... and proven at trial.” 19
In considering Malloy‘s appeal, the court of appeals read Donlun as stating a rule of law based on the Alaska Constitution. 20 The court construed Donlun to mean
that when a statute provides a greater maximum penalty for a erime based on specified aggravating factors, Alaska‘s guarantees of due process (Article I, Seetion 7) and of trial by jury (Article I, Section 11) [and also, when a felony is charged, Alaska‘s guarantee of grand jury indictment (Article I, Section 8) ] require us to treat the statute as creating separate offenses, and to treat the aggravating factors as elements of the aggravated form of the offense. The defendant will not be subject to the greater maximum penalty unless the charging document specifies the pertinent aggravating factors and the State proves these aggravating factors beyond a reasonable doubt at the defendant‘s trial.[ 21 ]
Applying this interpretation of Donlun to the case at hand, the court of appeals concluded that Malloy‘s parole restriction was invalid because Malloy had not been specifically charged and convicted for inflicting substantial physical torture on her murder vice-tim. The court expressly recognized that Alaska law ordinarily empowers sentencing courts “to restrict a defendant‘s normal eligibility for parole-or deny it altogether.”
22
But it nonetheless reasoned that a mandatory parole restriction imposed under
After emphasizing that
D. Analysis
When the court of appeals heard Malloy‘s case and reached its decision, federal constitutional case law on point was unsettled and offered no clear resolution as to whether Malloy had a right to be formally charged with and convicted of aggravating cireum-stances such as those specified in AS 12,55.125(a)(8) before being exposed to the mandatory maximum term for first-degree murder. 28 Because of this uncertainty, the court of appeals chose to view Donlun as a decision grounded on the Alaska Constitution; the court thus extended to Malloy the state constitutional protections that it found implicit in Donlun. 29
Less than two months after the court of appeals decided Malloy, the United States Supreme Court ended the federal law‘s lingering uncertainty by deciding Apprendi v. New Jersey, 30 a landmark case interpreting the Fourteenth Amendment‘s Due Process Clause to incorporate procedural protections that closely mirror the protections that Malloy found embedded in the Alaska Constitution.
Specifically, Apprendi holds that, “[olther than the fact of a prior ‘conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” 31 Conversely put, Ap-prendi forbids treating as a mere sentencing factor any aggravating cireumstance (apart from a prior conviction) that “must exist in order to subject the defendant to a legally prescribed punishment 32 - or in other words, “any fact which is essential to the punishment to be inflicted.” 33
But Apprendi does not lay to rest the narrower controversy presented here: whether the court of appeals correctly applied Donlun to Malloy‘s situation-that is, whether the court of appeals properly concluded that Malloy‘s murder sentence-a mandatory maximum sentence imposed under
The state correctly points out that, even without relying on the aggravating circumstances spelled out in the mandatory sentencing provision, Judge Andrews could have sentenced Malloy to exactly the same term that she received under
As the court of appeals expressly recognized, the usual maximum sentence for first-degree murder is ninety-nine years in prison, and in all such cases “sentencing judges have the authority under
True, sentencing judges have the authority underAS 12.55.115 to restrict a defendant‘s normal eligibility for parole- or deny it altogether. But we have previously held that a defendant receives a “maximum sentence” if he or she is sentenced to the maximum term of imprisonment, whether or not the sentencing judge restricts or denies parole eligibility. That is, the mandatory sentencing provision in the first-degree murder statute not only requires sentencing judges to impose the maximum term of imprisonment that might have been imposed under prior law, but it also effectively requires sentencing judges to exercise their utmost power underAS 12.55.115 to restrict the defendant‘s parole.[ 36 ]
But neither of these reasons supports the conclusion that
To be sure, any mandatory: sentence that entirely eliminates a judge‘s sentencing discretion may result in occasional cases where extraordinary circumstances might appear to preclude imposing the mandated sentence without jeopardizing the court‘s ability to promote Alaska‘s constitutional sentencing goal of reforming the offender in the particular case at hand. 38 But because this kind of constitutional friction implicates concerns relating to the substantive fairness of a mandatory sentence in particular factual settings, it has little to do with the concerns at issue here, which more narrowly relate to the procedural fairness of “expos[ing] the defendant to a greater punishment than that authorized by the jury‘s guilty verdict.” 39 And as Don-lun emphasized, “where a statute proscribes a single offense and commits a single range of sentences to the discretion of the sentencing court, aggravating facts warranting sentences in the upper spectrum of the range need not be set forth in the complaint or indictment.” 40
Furthermore, a mere possibility of constitutional friction in occasional, extraordinary cases does not justify declaring a statute entirely invalid. And in any event, no realistic danger of any such friction exists in the present case, for Judge Andrews‘s sentencing comments make it abundantly clear that she firmly believed Malloy‘s mandatory sentence to be justified and likely would have imposed exactly the same sentence even if
The court of appeals‘s second reason for céncluding that
In reality, of course, a parole-restricted term of ninety-nine years is undeniably harsher than a ninety-nine-year term that does not restrict a defendant‘s eligibility for discretionary parole. To apply Capwell‘s narrow definition of “maximum sentence” in the Donlun context would thus place form over substance. Both Donlun and Apprendi preclude this result; they require us to compare the harshest sentence actually available before a finding of aggravating circumstances under
Because the actual effect of a mandatory parole restriction imposed under
We hold, then, that the court of appeals incorrectly applied Donilun to Malloy‘s situation. The mandatory sentencing provisions of
Mailoy nonetheless urges us to expand Donliun beyond its literal terms and beyond its meaning as interpreted by the court of appeals. Citing Oregon and Hawaii case law, 46 Malloy advocates a state constitutional rule that would require the prosecution to charge -and submit to the jury any aggravating factor that is “intrinsic” to the commission of the charged offense and has the effect of narrowing the sentencing court‘s range of discretion in any way that disfavors the defendant. Under this approach, for example, Oregon has construed its state constitution to prohibit a mandatory minimum sentence triggered by intrinsic cireumstances not specifically charged and addressed by the jury. 47
But this approach has been considered by the United States Supteme Court and rejected under the federal constitution.
48
It also conflicts ‘with Alaska cases that deal with minimum and presumptive sentencing.
49
IV. CONCLUSION
Because
Notes
. The underlying facts of Malloy‘s offenses are exceptionally ‘brutal but are not relevant here; they are summarized in Malloy v. State, 1 P.3d 1266, 1269 (Alaska App.2000).
. Judge Andrews also sentenced Malloy to a term of ninety-nine years for kidnapping, made sixty years of that term consecutive to the term for murder, and imposed a concurrent five-year sentence for tampering with evidence. Malloy‘s composite term thus totaled 159 years’ imprisonment.
. Malloy, 1 P.3d at 1290.
. Id. at 1288, 1290.
. Malloy v. State, 1 P.3d 1266 (Alaska App.2000), pet. for hrg. granted, File No. S-9754 (Alaska, October 3, 2000). Malloy also petitioned for hearing, challenging the court of appeals‘s decision to affirm her conviction and total term of imprisonment. We denied Malloy‘s petition for hearing.
. Keane v. Local Boundary Comm‘n, 893 P.2d 1239, 1241 (Alaska 1995); Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988).
. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).
.
(a) A defendant convicted of murder in the first degree shall be sentenced to a definite term of imprisonment of at least 20 years but not more than 99 years. A defendant convicted of murder in the first degree shall be sentenced to a mandatory term of imprisonment of 99 years when
(1) the defendant is convicted of the murder of a uniformed or otherwise clearly identified peace officer, fire fighter, or correctional employee who was engaged in the performance of official duties at the time of the murder; {or]
(2) the defendant has been previously convicted of
(A) murder in the first degree underAS 11.41.100 or formerAS 11.15.010 or 11.15.020;
(B) murder in the second degree underAS 11.41.110 or formerAS 11.15.030 ; or
(C) homicide under the laws of another jurisdiction when the offense of which the defendant was convicted contains elements similar to first degree murder underAS 11.41.100 or second degree murder underAS 11.41.110 ; {or] j
(3) the court finds by clear and convincing evidence that the defendant subjected the murder victim to substantial physical torture[.]
. See above, footnote 8.
. AS, 12.55.115 provides: “The court may, as part of a sentence of imprisonment, further restrict the eligibility of a prisoner for discretionary parole for a term greater than that required under
. Malloy, 1 P.3d at 1285, 1288-89.
. Id. at 1288-89.
. 527 P.2d 472 (Alaska 1974).
. Malloy, 1 P.3d at 1285, 1288-89.
. Donlun, 527 P.2d at 473-74 (describing former
. Id. at 473.
. Id.
. Id. at 474.
. Malloy, 1 P.3d at 1287-89.
. Id. at 1288.
. Id. at 1285 (citing
. Id. at 1285.
. Id. (footnote omitted) (citing Capwell v. State, 823 P.2d 1250, 1256 (Alaska App.1991)).
. Id. at 1285.
. Id. at 1288, 1290.
. The court of appeals initially ordered the superior court to enter an amended judgment with the parole restriction deleted. Malloy, 1 P.3d at 1290. But after the state filed a petition for rehearing pointing out that the sentencing judge had strongly suggested that she would have imposed the same parole restriction as a matter of discretion under
. Malloy, 1 P.3d at 1285-86 (discussing the United States Supreme Court‘s then two most recent decisions on the issue, Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and Jones v. United States, 526 U.S. 227, 119 S.Ct.1215, 143 L.Ed.2d 311 (1999)).
. See id. at 1287-89.
. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). ©
. Id. at 490, 120 S.Ct. 2348.
. Id. at 499, 120 S.Ct. 2348 (Scalia, Justice, concurring).
. Id. at 511, 120 S.Ct. 2348 (Thomas, Justice, concurring) (quoting 1 J. Bishop, Commentaries on Criminal Law § 961, pp. 564-65 (5th ed. 1872)).
. Malloy, 1 P.3d at 1285.
. Id.
. Id. (footnote omitted) (citing Capwell v. State, 823 P.2d 1250, 1256 (Alaska App.1991)).
. See Apprendi, 530 U.S. at 482, 120 S.Ct. 2348; Donlun, 527 P.2d at 474.
. See Alaska Const. art. T, § 12:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Criminal administration shall be based upon the following: 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.
Cf. Dancer v. State, 715 P.2d 1174, 1177—79 (Alaska App.1986) (discussing the three-judge sentencing panel‘s safety-valve function in the context of a due process challenge to Alaska‘s presumptive sentencing system).
. Apprendi, 530 U.S. at 494, 120 S.Ct. 2348.
. Donlun, 527 P.2d at 474; cf. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (upholding Pennsylvania‘s Mandatory Minimum Sentencing Act).
. Malloy, 1 P.3d at 1285.
. Id. (footnofe omitted).
. 823 P.2d 1250, 1256 (Alaska App.1991), cited in Malloy, 1 P.3d at 1285 n. 47.
. Alternatively stated, if
. Apprendi, 530 U.S. at 494, 120 S.Ct. 2348.
. See State v. Janto, 92 Hawai‘i 19, 986 P.2d 306, 320 (1999); State v. Tafoya, 91 Hawai‘i 261, 982 P.2d 890 (1999); State v. Wedge, 293 Or. 598, 652 P.2d 773 (1982).
. Wedge, 652 P.2d at 775, 778; cf. Tafoya, 982 P.2d at 902 (stating that “for constitutional purposes, there is no distinction between extended and mandatory minimum enhanced sentencing. Both constrain the discretion of the sentencing judge and fix the term of incarceration imposed ... as a result of the conviction.“).
. Apprendi, 530 U.S. at 482, 120 S.Ct. 2348 (when imposing judgment within the sentencing range prescribed by statute, courts may consider sentencing factors relating both to the offense and the offender); see also McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (approving mandatory minimum sentencing law).
. Notably, the court of appeals has consistently upheld both presumptive sentencing and mandatory sentencing statutes as constitutionally valid. See, e.g., Abdulbagui v. State, 728 P.2d 1211 (Alaska App.1986) (affirming enhanced presumptive sentence as constitutional); Dancer v. State, 715 P.2d 1174, 1177-79 (Alaska App.1986) (upholding Alaska‘s presumptive sentencing statutes against a due process challenge); Huf v. State, 675 P.2d 268, 273 (Alaska App.1984) (holding that a- six-year mandatory minimum sentence merely limited the judge‘s discretion within the penalty range of up to twenty years, when the trial court found that the defendant possessed or used a firearm during the commission of a felo ny). More notably still, in Abdulbagui the court disapprovingly commented on the approach adopted in Wedge, observing that the Oregon decision conflicted with the court of appeals‘s ruling in Huf v. State. 728 P.2d at 1220.
. Donlun, 527 P.2d at 474.