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Gilley v. State3/27/1998
Appeal from the Superior Court, Third Judicial District, Anchorage, William H. Fuld, Judge.
In 1997, Herbert James Gilley, Jr., was convicted of felony driving while intoxicated, AS 28.35.030(a), (n). Gilley had two prior felony convictions, one from 1993 and the other from 1977. The question in this case is whether the superior court was obliged to treat Gilley as a third felony offender for purposes of presumptive sentencing, or whether (as Gilley contends) the superior court had the discretion to ignore the 1977 felony conviction and to treat Gilley as a second felony offender. Gilley contends that his sentence must be vacated because the superior court did not realize that it had the discretion to sentence him as a second felony offender. For the reasons explained here, we hold that the superior court was obliged to treat Gilley as a third felony offender, and we therefore affirm his sentence.
As this court recognized in Juneby v. State, 641 P.2d 823, 831 n.12 (Alaska App. 1982), modified on other grounds, 665 P.2d 30 (Alaska App. 1983), Gilley's status as a second or third felony offender hinges on the relationship between, on the one hand, the definitions of "second felony offender" and "third felony offender" codified in AS 12.55.185 and, on the other, the provisions of AS 12.55.145(a) and (f) that explain what constitutes a "prior conviction" for presumptive sentencing purposes.
Under the presumptive sentencing laws, a defendant is considered a "second felony offender" if "the defendant previously has been convicted of a felony". AS 12.55.185(12). A defendant is considered a "third felony offender" if "the defendant has been at least twice previously convicted of a felony". AS 12.55.185(14). Gilley was convicted of third-degree assault in 1993, and he was convicted of assault with a dangerous weapon (under the former criminal code) in 1977. Because Gilley "has been ... twice previously convicted of a felony", he would ordinarily be classified as a third felony offender.
AS 12.55.145(a)(1)(A) contains an exception to the definitions of "second felony offender" and "third felony offender". This exception applies if the defendant's current offense was committed ten years or more after the defendant was discharged from his or her last felony sentence (including any period of probation or parole). The statute provides:
For purposes of considering prior convictions in imposing sentence under [any of the presumptive sentencing provisions of AS 12.55.125], ... a prior conviction may not be considered if a period of 10 or more years has elapsed between the date of the defendant's unconditional discharge on the immediately preceding offense and [the defendant's] commission of the present offense unless the prior conviction was for an unclassified or class A felony[.]
Under this statute, if Gilley had committed his present felony ten years or more after his unconditional discharge from his immediately preceding felony conviction, he would be considered a first felony offender for presumptive sentencing purposes even though he had twice previously been convicted of a felony. See Griffith v. State, 653 P.2d 1057, 1058 (Alaska App. 1982). It is apparent, however, that Gilley does not fall within this exception: his immediately preceding felony conviction was entered in 1993. (In fact, Gilley was still on probation from that felony conviction when he committed his present offense.)
Gilley nevertheless asserts that, because his 1977 felony conviction is more than ten years old, he is entitled to a limited exception from AS 12.55.185(14), the statute that defines "third felony offender". Gilley contends that AS 12.55.145(a) authoriz
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