NOTICE

This is a summary disposition issued under Alaska Appellate Rule 214(b). Summary disposition decisions of this Court do not create legal precedent and are not available in a publicly accessible electronic database. See Alaska Appellate Rule 214(d).

SUMMARY DISPOSITION

William Simmonds was sentenced to serve 99 years for attempted second-degree sexual abuse of a minor pursuant to AS 12.55.125(i)(4)(E). He appeals this sentence on the ground that AS 12.55.125(i)(4)(E) violates Alaska's constitutional prohibition on ex post facto laws. We affirm the sentence because a statute that enhances a sentence for a currently committed crime, based on prior offenses that occurred before the passage of the statute, is not an ex post facto law.1

Simmonds was found guilty by a jury in August 2014 of attempted second-degree sexual abuse of a minor. The conduct underlying the conviction occurred in April 2013.

Simmonds had two prior convictions for second-degree sexual abuse of a minor. The conduct underlying the priors occurred in 1994, while the convictions were entered in 1997. At that time, Alaska's sentencing laws did not impose an increased sentence for a sexual felony based on the defendant having prior sexual felony convictions.2 However, in 2003 the Alaska legislature adopted subsection (i) of AS 12.55.125, imposing increased presumptive ranges for sexual felony convictions based on a defendant's prior conviction for a "sexual felony." In 2006, the Alaska legislature amended AS 12.55.125(i), increasing the presumptive ranges so that a defendant who has two prior sexual felony convictions and is convicted of attempted second-degree sexual abuse of a minor faces a presumptive 99-year sentence.3

Applying this statute, the trial court imposed a sentence of 101 years with 2 years suspended, or 99 years to serve.

Simmonds appeals, contending that because his prior convictions arose before the 99-year presumptive term was adopted by the legislature, application of that term to his current conviction violates Alaska's constitutional prohibition on ex post facto laws. In particular, Simmonds argues that the legislature's creation of the term "sexual felonies" retroactively changed the meaning of his prior convictions, violating Alaska's ex post facto prohibition. The State responds that, because the statutory change did not change Simmonds's sentence for his prior convictions but only changed the presumptive range for his current conviction based on his prior convictions, there is no ex post facto violation.

In Alaska, an ex post facto law is one that: (1) makes previously legal conduct a crime and attempts to punish the conduct that predated the statutory change; (2) makes punishment harsher for a previous crime and attempts to impose that harsher sentence; or (3) deprives someone of a previously available defense when charged with conduct that predated the statutory change.4 But the United States Supreme Court, the Alaska Supreme Court and this Court have held that a statute which does not increase a sentence for a prior act but instead enhances the punishment for a current act based on the prior conduct does not violate the prohibition on ex post facto laws.5 In doing so, we have cited with approval Professor LaFave's discussion of this point:6

Simmonds asserts that these cases are inapplicable because the statutory changes re-classified his prior convictions as "sexual felonies," thereby increasing the punishment for those offenses. But this is incorrect. The legislature's imposition of a 99-year presumptive term for defendants with two or more prior sexual felony convictions did not change the definition of the prior crimes or increase Simmonds's sentence for those past crimes. Rather, it imposed an increased sentence for his current crime based on the existence of those prior crimes. Therefore, imposition of a presumptive 99-year term does not represent the application of an ex post facto law to Simmonds's sentence.

The judgment of the superior court is AFFIRMED.