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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RANDOLPH WILLIAMS,
Court o
f Appeals No. A-12183
Appellant,
Trial Court No. 1HA-12-071 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2594 - March 30, 2018
Appeal from the Superior Court, First Judicial District, Haines,
Keith B. Levy, Judge.
Appearances: Susan Orlansky, Reeves Amodio LLC,
Anchorage, under contract with the Public Defender Agency,
and Quinlan Steiner, Public Defender, Anchorage, for the
Appellant. Donald Soderstrom, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,
Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge.*
Judge MANNHEIMER.
* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
----------------------- Page 2-----------------------
Randolph Williams appeals his convictions on eight counts of possessing
1
child pornography.
The pornographic images were discovered on an office computer
at the Chilkoot Indian Association in Haines around mid-day on November 19, 2012.
This computer was available for the use of Association members, and Williams had used
the computer earlier that day, but he claimed that he only used the computer to check his
e-mail, and that he did not possess the pornographic images. The jury rejected this
defense and convicted Williams of the eight counts.
In this appeal, Williams raises three claims.
First, Williams argues that the indictment against him should have been
dismissed because the State failed to apprise the grand jury of evidence suggesting that
Williams might have an alibi for mid-day on November 19th. We reject this claim
because the purported "alibi" evidence merely suggested, and did not come close to
proving, that Williams was elsewhere at the relevant times. It was the kind of evidence
that could potentially be useful to a defense attorney, but it did not independently
establish Williams's innocence.
Williams's second appellate claim concerns the "last accessed" file property
of the pornographic images.
The Windows operatingsystem has the ability to keep track of the date and
time at which a computer file was last "accessed", either by a computer user or by a
computer program. At trial, Williams's attorney pointed out that when the Haines chief
of police opened the pornographic images on the Association's computer - to confirm
the presence of child pornography on the computer, and to preserve this evidence by
taking photographs of the images as they were displayed on the computer monitor - he
inadvertently altered the "accessed" property of those images. Williams's attorney
1 AS 11.61.127(a).
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further asserted that if the pre-existing "accessed" date-and-time stamps of the
pornographic images had been preserved, those date-and-time stamps would have shown
that Williams could not have been the person who downloaded and then deleted the
various pornographic images.
Based on these assertions, Williams's attorney asked the trial judge to give
a Thorne instruction to the jury regarding those "accessed" date-and-time stamps - i.e.,
an instruction telling the jurors to presume that the earlier "accessed" date-and-time
2 The trial judge
stamps would have been exculpatory if they had been preserved.
declined to give a Thorne instruction. For the reasons explained in this opinion, we
uphold that decision.
Finally, Williams argues that even though he has two prior felony
convictions, he should have been sentenced as a first felony offender for his present
crimes, rather than as a third felony offender, because he was released from supervision
for his most recent prior felony more than ten years ago. See AS 12.55.145(a). As we
explain in this opinion, we agree with Williams, and we direct the superior court to re-
sentence him.
Normally, we would address a defendant's attacks on their convictions
before we addressed the defendant's attack on their sentence. But in Williams's case, our
resolution of his sentencing issue has substantial importance for all defendants who are
sentenced for a sexual felony under AS 12.55.125(i). This is why we are publishing our
decision in this case - and it is why we address the sentencing issue first, even before
we describe the underlying facts of Williams's case.
2 See Thorne v. Dept. of Public Safety , 774 P.2d 1326, 1331-32 (Alaska 1989).
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The question of how many prior felonies Williams had for purposes of
presumptive sentencing
A jury found Williams guilty of eight counts of possessing child
3
pornography. This offense is a class C felony,
but because it is a sexual felony,
sentencing for this offense is not governed by AS 12.55.125(e) (the sentencing
provisions that normally apply to class C felonies). Rather, sentencing for this offense
is governed by the sexual felony provisions of AS 12.55.125(i)(4).
Under AS 12.55.125(i)(4), the presumptive sentencing range for a class C
sexual felony depends on two factors: (1) how many prior felonies the defendant has,
4
and (2) whether those prior felonies are sexual felonies or non-sexual felonies.
Williams had two prior felonies, but neither of them was a sexual felony.
He had a burglary conviction from 1992, and he had a forgery conviction from 1994.
Because these prior felonies were so old, a question arose at Williams's sentencing as to
whether he should be treated as a third felony offender or, instead, only a first felony
offender.
AS 12.55.145(a) is the statute that governs how prior offenses are counted
for purposes of presumptive sentencing. One provision of this statute, subsection
(a)(1)(A), declares that:
... a prior conviction for an unclassified or a class A felony is always counted as
a "prior felony conviction" for presumptive sentencing purposes, but
... prior convictions for class B or class C felonies are not counted if the
defendant was unconditionally released from supervision for their most recent
felony ten years or more before the defendant committed their present offense.
3 AS 11.61.127(g).
4
AS 12.55.125(i)(4)(A)-(E).
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----------------------- Page 5-----------------------
(In general, see Gilley v. State, 955 P.2d 927 (Alaska App. 1998), where this Court
interpreted this statute.)
As we have explained, Williams had a burglary conviction from 1992 and
a forgery conviction from 1994. These are class B and class C felonies - and although
the record does not contain Williams's exact dates of discharge from supervision for
these felonies, the State does not dispute that Williams was discharged from supervision
at least ten years before the date of his current offense (November 19, 2012).
Based on this, Williams's attorney argued that Williams should be treated
as a first felony offender for purposes of his current sentencing. But the superior court
concluded that, despite the ten-year "expiration" provision of AS 12.55.145(a)(1)(A),
Williams should be treated as a third felony offender. The superior court reached this
conclusion because another subsection of AS 12.55.145(a) - subsection (a)(4) -
contains a separate set of rules for defendants who are being sentenced for sexual
felonies under AS 12.55.125(i).
Subsection (a)(4) does not contain an "expiration" provision like the one
contained in subsection (a)(1)(A). Because of this, the superior court concluded that a
defendant's old felonies never "expire" - i.e., they always count - if the defendant is
being sentenced for a sexual felony.
For the reasons we are about to explain, we disagree with the superior
court's interpretation of AS 12.55.145(a).
Originally, AS 12.55.145(a) had only one set of rules for counting "prior
convictions" - the set of rules that is now codified in subsection (a)(1) of the statute.
The first of these rules is subsection (a)(1)(A) - the "expiration" rule that
we have been discussing. The next rule is subsection (a)(1)(B) - the rule that defines
when an out-of-state conviction counts as a "prior felony conviction". And the third rule
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----------------------- Page 6-----------------------
is subsection (a)(1)(C) - the rule that defines when two or more convictions arising
from a continuous criminal episode should only be counted as one prior conviction.
In 1996, the Alaska Legislature enacted new sentencing rules for habitual
5
felony offenders; see AS 12.55.125(l).
These new rules for habitual offenders hinge
on a subset of the defendant's prior felony convictions - specifically, the number of the
defendant's prior convictions for "most serious felonies". Accordingly, the legislature
added a new subsection to AS 12.55.145(a) - subsection (a)(2) - that defines the rules
for ascertaining the number of a defendant's "most serious felonies". See SLA 1996,
ch. 7, § 8.
In 1998, the Alaska Legislature enacted new minimum sentences for
6 These minimum sentences hinge on
misdemeanor assault involving domestic violence.
a defendant's number of previous convictions for "a crime against a person" or "a crime
involving domestic violence". Because the legislature wanted to use a shorter, five-year
"expiration date" for these prior offenses, the legislature added a new subsection to
AS 12.55.145(a) - subsection (a)(3) - to codify the five-year expiration rule for this
category of crimes. See SLA 1998, ch. 86, § 10.
And in 2003, the Alaska Legislature enacted new presumptive sentencing
ranges for sexual felonies. 7 These new presumptive ranges hinge not only on a
defendant's number of prior "felonies" but also on a defendant's number of prior "sexual
felonies". Because of this, the legislature added a new subsection to AS 12.55.145(a) -
subsection (a)(4) - that contains rules for ascertaining the number of a defendant's
"sexual felonies". See SLA 2003, ch. 90, § 6.
5 See SLA 1996, ch. 7, § 7.
6 See SLA 1998, ch. 86, § 9.
7
See SLA 2003, ch. 90, § 5.
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----------------------- Page 7-----------------------
At the same time, the legislature amended the introductory wording of
subsection (a)(1) (the subsection containing the original set of rules) to say that the rules
set forth in subsection (a)(1) apply when a defendant is being sentenced under
"AS 12.55.125(c), (d), or (e)" - in other words, when the defendant is being sentenced
for any class A, class B, or class C felony other than a sexual felony.
Thus, AS 12.55.145(a) seemingly has two different sets of rules for
determining the number of a defendant's prior convictions: the rules contained in
subsection (a)(1) that apply when a defendant is being sentenced for a non-sexual
class A, class B, or class C felony, and the rules contained in subsection (a)(4) that apply
when a defendant is being sentenced for a sexual felony.
The "sexual felony" subsection, (a)(4), does not contain a provision that
mirrors the ten-year "expiration" provision of subsection (a)(1)(A).
Based on this, the superior court in Williams's case concluded - and the
State now argues - that there is no expiration provision for offenders who are being
sentenced for a sexual felony. In other words, the State contends that all of the
defendant's prior class B and class C felony convictions count, regardless of how long
ago the defendant was released from supervision for those felonies.
But the "expiration" rule is not the only provision that is missing from the
"sexual felony" provisions set forth in subsection (a)(4). Here is the text of subsection
(a)(4):
[When a defendant is being sentenced for a sexual
felony under] AS 12.55.125(i),
(A) a conviction in this or another jurisdiction of an
offense having elements similar to those of a sexual felony is
a prior conviction for a sexual felony;
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----------------------- Page 8-----------------------
(B) a felony conviction in another jurisdiction making
it a crime to commit any lewd and lascivious act upon a child
under the age of 16 years, with the intent of arousing,
appealing to, or gratifying the sexual desires of the defendant
or the victim is a prior conviction for a sexual felony; [and]
(C) two or more convictions arising out of a single,
continuous criminal episode during which there was no
substantial change in the nature of the criminal objective are
considered a single conviction unless the defendant was
sentenced to consecutive sentences for the crimes; offenses
committed while attempting to escape or avoid detection or
apprehension after the commission of another offense are not
part of the same criminal episode or objective.
These provisions define what counts as a prior "sexual felony". But these
provisions do not define what counts as a "prior felony" in the broader sense - i.e., in
the sense of "all prior felonies, including non-sexual felonies".
This is a significant omission - because, as we have explained, the
presumptive sentencing ranges for sexual felonies hinge on both the number of a
defendant's prior sexual felonies and the number of a defendant's prior non-sexual
felonies. To ascertain the applicable presumptive sentencing range in a given case, the
sentencing court must know both of these numbers.
Subsection (a)(4) does not contain an "expiration" provision for class B and
class C felonies. But neither does it contain a provision that allows a court to count a
defendant's out-of-state felony convictions (unless those convictions are for "lewd and
lascivious act[s] upon a child under the age of 16 years").
Thus, if we were to adopt the position advocated by the State - the
position that subsections (a)(1) and (a)(4) are mutually exclusive, and that the rules
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----------------------- Page 9-----------------------
contained in subsection (a)(1) do not apply when a defendant is being sentenced for a
sexual felony - then a defendant's out-of-state felonies would not be counted.
We conclude that the more reasonable interpretation of AS 12.55.145(a) is
to read subsections (a)(1) and (a)(4) together, as complementary provisions that provide
the rules for ascertaining the total number of a defendant's prior felony convictions and,
from among this total, the number of a defendant's prior sexual felony convictions.
This interpretation is supported by the history of the statute itself.
As we explained, when AS 12.55.145(a) was originally enacted, a
sentencing court had to count the number of a defendant's prior felony convictions, and