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Biddinger v. State3/11/1998
or misdemeanors, similar in nature to the offense for which the defendant is being sentenced under this section".
There is potential ambiguity in the wording of AS 12.55.155(c)(21). The problem is to determine whether the adjective "similar" modifies the noun "conduct" or the noun "laws". Is aggravator (c)(21) proved by evidence that the defendant has engaged in " conduct ... similar in nature to the [defendant's present] offense"? Or does the aggravator require proof that the defendant has repeatedly "violat ... s ... similar in nature to the [defendant's present] offense"?
Biddinger argues that the aggravator requires proof that a defendant's past offenses involved s similar to the law the defendant is charged with violating now. His position is supported by this court's decision in Kelley v. State, 785 P.2d 567, 568 (Alaska App. 1990), where this court held that the particular circumstances of a defendant's past offenses were irrelevant so long as the State established that the defendant had violated criminal statutes similar in nature to the statute the defendant was currently convicted of violating.
When announcing his decision that aggravator (c)(21) was proved, Judge Weeks relied on the fact that Biddinger was often intoxicated when he committed his crimes, as well as the fact that Biddinger's crimes often involved taking advantage of friends and associates. When Biddinger objected that these similarities, even if proved, were irrelevant to the court's determination of aggravator (c)(21), Judge Weeks (mistakenly) cited Kelley as authority for taking these circumstances into account.
However, even assuming that Judge Weeks erred in taking into account the particular circumstances of Biddinger's prior crimes, this error was harmless. Biddinger's prior crimes involved violations of statutes prohibiting assault and theft. I join the majority's ruling that both assault and theft are "similar" to robbery for purposes of applying aggravator (c)(21). Thus, the aggravator was proved wholly apart from the factual similarities or the behavioral patterns that Judge Weeks alluded to.
For these reasons, I join the majority in affirming Biddinger's sentence.
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