Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

Judge MANNHEIMER.

On March 16, 2013, Daniel R. Pirtle was shopping at an Anchorage Walmart store. Pirtle was in a wheelchair, and he was accompanied by his service dog. This service dog, who was still in training, was not on a leash, and he was bothering other customers — to the point where Walmart employees summoned a store manager, Jason Mahl.

Mahl spoke to Pirtle about his dog; he told Pirtle that if he did not put the dog on a leash, Pirtle would have to leave the store. Pirtle explained that if the dog was leashed, the leash might get tangled up in Pirtle's wheelchair. When Mahl continued to insist that the dog be leashed, Pirtle became upset and declared that he would leave.

Pirtle began to make his way toward the store exit, but he stopped at an aisle intersection. Mahl was walking in the same direction, one aisle over. When Mahl reached the intersection and came into Pirtle's view, Pirtle drew a pistol and shot Mahl in the abdomen. Pirtle then resumed wheeling himself toward the store exit.

When Pirtle was later questioned by police detectives, he stated that he shot Mahl because he believed that Mahl was about to kick his service dog. Pirtle added that he was previously acquainted with Mahl — that he and Mahl had both lived in Oregon, and that Mahl had stabbed Pirtle during a fight over a woman. But Pirtle's recollection of this event appears to have been mistaken; Mahl told the police that he had never had any interaction with Pirtle before, and that he had never even been to Oregon.

Based on this incident, Pirtle was indicted for attempted murder and first-degree assault.1 He ultimately resolved these charges in a plea bargain with the State. Under the terms of this plea bargain, Pirtle pleaded guilty to first-degree assault, with open sentencing. The State agreed to dismiss the attempted murder charge and to refrain from proposing any statutory aggravators at Pirtle's sentencing for first-degree assault.

Pirtle was a first felony offender, so he faced a presumptive sentencing range of 7 to 11 years' imprisonment for the first-degree assault.2 The superior court sentenced Pirtle to 11 years' imprisonment with 2 years suspended — i.e., 9 years to serve.

Pirtle now appeals this sentence. Although he phrases his argument as an assertion that his sentence is "excessive", his real argument is that his sentence is illegal.

Pirtle argues that, under Alaska sentencing law, when there is a prescribed presumptive range of imprisonment for a particular offense, and if no aggravating factors are proved, (1) the defendant's active term of imprisonment (the "time to serve" component of the sentence) must be the specified number of years at the low end of the applicable presumptive range, and (2) any term of imprisonment above the low end of the range must be suspended.

In other words, Pirtle argues that it was illegal for the superior court to sentence him to serve 9 years in prison. He contends that, in the absence of aggravating factors, his sentence could not lawfully exceed 11 years with 4 years suspended — i.e., 7 years to serve.

We have considered Pirtle's statutory arguments, and we find them unconvincing. It is true, as Pirtle contends, that when the legislature made the change from prescribed presumptive terms of imprisonment to prescribed presumptive ranges of imprisonment, the legislature declared that they did not intend "to bring about an overall increase in the amount of active imprisonment for felony [offenses]".3 But the text of AS 12.55.125 — particularly subsections (g), (h), and (n) of the statute — demonstrably authorizes sentencing judges to impose any term of imprisonment within the applicable presumptive range (regardless of whether aggravating factors have been proved). We therefore conclude that Pirtle's sentence is lawful.

We wish to clarify that Pirtle has not raised the related argument about presumptive sentencing that we have seen in several recent appeals: the argument that, within any given presumptive range of imprisonment, the legislature intended the low end of the range to be the default. According to this argument, even though sentencing judges are authorized to impose any sentence within the applicable presumptive range (even in the absence of aggravating factors), sentencing judges must nevertheless articulate affirmative reasons for imposing a term of active imprisonment that exceeds the low end of the range.

Because Pirtle does not raise this argument, our resolution of his appeal does not require us to decide this issue.

The judgement of the superior court is AFFIRMED.

Judge ALLARD, concurring.

I join Judge Mannheimer in concluding that Alaska sentencing law does not mandate that, in the absence of statutory aggravators, the defendant's term of active imprisonment must be limited to the specified number of years at the low end of the presumptive range.

I write separately to address a related argument about presumptive sentencing: the argument that, within any given presumptive range of imprisonment, the 2005 legislature intended the number at the low end of the range to be the default active term of imprisonment for a person convicted of this offense, and therefore a sentencing judge should specify some affirmative reason for imposing an active term of imprisonment greater than the low end of the applicable presumptive range in a particular case.

I believe that this argument finds strong support in the legislative history of Alaska's sentencing law.

In 2005, in response to the United States Supreme Court's decision in Blakely v. Washington,1 the Alaska legislature replaced the prior definite presumptive terms with presumptive ranges, using the former presumptive term as the low end of the new range.2 At the same time, the legislature declared that its intent was simply to restore sentencing discretion that had been "unduly constrain[ed]" by the previous sentencing regime, particularly under the new mandates of Blakely, and "not to bring about an overall increase in the amount of active imprisonment for felony sentences."3

The legislative letter of intent accompanying these sentencing revisions expressly states:

The expectation of the 2005 legislature therefore appears to have been that a defendant's active term of imprisonment would normally remain at the low end of the applicable presumptive range and that the higher end of the presumptive ranges would be used primarily for suspended time — except in cases where the offense could be considered "aggravated" under the pre-Blakely, judicially-determined, statutory aggravators. The legislative committee minutes accompanying the 2005 "Blakely fix" further support this understanding of the legislative intent.5

Recent legislative action also confirms that this was the 2005 legislative intent. In December 2015, the bipartisan Alaska Criminal Justice Commission published its Justice Reinvestment Report.6 In the report, the Commission noted that despite the 2005 legislative intent to "maintain lengths of prison stays at 2005 levels," the length of active prison sentences had risen across the board since the shift from presumptive terms to presumptive ranges.7 To counter this trend and to effectuate the original legislative intent of no overall increase in sentences, the Commission recommended that the legislature realign the presumptive ranges for all felony crimes other than sexual offenses by placing the prior presumptive terms in the middle of the range rather than at the low end of the range.8 The legislature responded by enacting Senate Bill 91, which adopted the recommendation of the Commission and realigned the presumptive sentencing ranges accordingly.9

Because the 2005 presumptive terms will continue to apply to some defendants, I believe that an awareness of the original 2005 legislative intent still remains important for sentencing judges. I also note that requiring a sentencing judge to articulate his or her reasons for imposing an active term of imprisonment above the low end of the applicable 2005 presumptive range is not only consistent with the 2005 legislative intent, it is also in accord with "the traditional requirement that sentencing decisions be carefully formulated and thoroughly explained."10