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Malloy v. State5/19/2000
benefit of having private citizens judge whether there is probable cause to hold the accused for trial. The grand jury protects the innocent from unjust prosecution ... ."
Thus, the Alaska Constitution guarantees a broader right of jury trial than the federal Constitution, and it guarantees a right of grand jury indictment that is not guaranteed by the federal Constitution. Because of this, we conclude that the question raised by Malloy - though it may be "grave and uncertain" under federal law - does have an answer under the Alaska Constitution.
A defendant convicted of first-degree murder under the normal penalty provision faces a minimum sentence of 20 years' imprisonment and a maximum of 99 years' imprisonment. A defendant convicted of first-degree murder under the aggravating circumstances specified in subsections (1)-(3) faces a mandatory sentence of 99 years without possibility of parole. Given this great disparity, it is fundamentally unfair to require a defendant to make decisions about plea-bargaining and trial strategy without knowing whether the State will ask for the 99-year mandatory sentence. Indeed, the way AS 12.55.125(a) is written, the State need not decide whether to seek the 99-year mandatory sentence until the defendant's trial is over. Thus, a defendant who chooses to go to trial rather than plead guilty or no contest runs the risk that, during the trial process, evidence will come to light that will enable the State to argue that the defendant should be sentenced under AS 12.55.125(a)(1)-(3). Even if the trial does not reveal new evidence, the defendant still takes the risk that heated emotions engendered during the trial might prompt the prosecutor to re-evaluate the State's sentencing strategy and perhaps seek the mandatory 99-year sentence when the prosecutor otherwise would not have done so.
Donlun holds that, in circumstances like this - when a statute provides a different maximum penalty for an offense based on the presence of aggravating factors - the statute must be deemed to create separate offenses, and the specified aggravating factors must be treated as elements of the aggravated form of the offense. As explained above, the Alaska Supreme Court did not specify the legal basis for its decision in Donlun. But we note that the supreme courts of Oregon and Hawai'i have adopted the same rule based on their state constitutions' guarantees of trial by jury.
Based on our analysis of Donlun, we hold that when a statute provides a greater maximum penalty for a crime based on specified aggravating factors, Alaska's guarantees of due process (Article I, Section 7) and of trial by jury (Article I, Section 11) 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. If (as in Malloy's case) the alleged crime is a felony, then Alaska's guarantee of grand jury indictment (Article I, Section 8) also requires the State to establish the pertinent aggravating factors at grand jury.
We do not question the legislature's authority to require a 99-year sentence without possibility of parole for the most egregious forms of first-degree murder. But if such a sentence - a sentence that exceeds the normal maximum penalty for the crime - awaits the defendant upon conviction, then procedural fairness requires that the defendant receive notice of this possibility in the charging document. Moreover, to prevent erosion of the con
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