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Dayton v. State - 120 P.3d 1073 (Alaska Ct. App. 2005)


Where the total sentence received by a first offender exceeds the presumptive sentence for a second offender but the period of actual imprisonment is substantially less, the total sentence meets the Austin requirement of a substantially more favorable sentence for the first offender. Where, however, the actual period of imprisonment equals or exceeds the presumptive term for a second offender, the appellate court will require aggravating factors or extraordinary circumstances to justify additional jail time, even if it is suspended.


Franklin Dayton Jr. was originally indicted for first-and second-degree sexual assault, stemming from his act of sexual penetration with a woman who was intoxicated and who had fallen asleep in his home. Dayton successfully moved to have the first-degree sexual assault charge dismissed, but the superior court upheld the second-degree sexual assault charge. The parties then negotiated a plea bargain. Under the terms of this plea bargain, the State agreed to dismiss the sexual assault charge and replace it with a charge of third-degree assault (i.e., not a sexual assault). The parties agreed to open sentencing on this reduced charge, and the parties further agreed that the superior court's sentencing decision could be based on the contents of the pre-sentence report and the police reports in the case, without the need for either side to produce live testimony. The trial court found that aggravators had been established by clear and convincing evidence and sentenced Dayton to four years' imprisonment with two years suspended.


Did the trial court err in sentencing Dayton to four years' imprisonment with two years suspended, notwithstanding the lack of aggravating factors?




The Court of Appeals reversed as to one condition of defendant's probation and otherwise affirmed the trial court's decision. The Court held that, the applicable law, Alaska Stat. § 12.55.125(k)(2), which superseded the common-law sentencing rule announced in several earlier cases, meant that when a judge was sentencing a first felony offender for a class B or a class C felony, the defendant's time to serve could equal, but not exceed, the presumptive term that would apply to a second felony offender convicted of the same crime. In the case at bar, the Court ruled that even without proof of any aggravating factors, the judge was authorized to impose the sentence that Dayton received.

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