text:
    2002 WY 79
    Franklin S. WILLIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-74.
    Supreme Court of Wyoming.
    May 22, 2002.

      Nadine McLeod, Casper, Wyoming, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S8. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[11] Franklin Willis was convicted of felony larceny by a bailee under Wyo. Stat. Ann. § 6-3-402(b) (LexisNexis 2001) for selling three horses which were entrusted to his care. He appeals his judgment and sentence claiming insufficient evidence and certain evi-dentiary errors. Finding no error, we affirm.

ISSUES

[12] Mr. Willis presents the following issues for our review:

I.
Whether the evidence was insufficient to show a felonious taking as the appellant had an honest good faith belief that he had right and title to the property(.]
IL
Whether the Appellant was denied his right to a fair trial as [gluaranteed by the Due Process Clause of the United States and the Wyoming Constitutions when the trial court erred by its refusal to allow the appellant to introduce evidence to show basis for appellant's belief that the horses had been given him by Sondeno.
IIL
Whether the appellant was denied his right to a fair trial when the trial court erred by allowing hearsay testimony by the state to improperly impeach its own witness[.]
IV.
Whether the evidence [was] insufficient to find that the property sold on the date charged met the felony limit[.]
v.
Was the cumulative effect of the errors discussed above such that the appellant was denied his right to a fair trial[?]

The State of Wyoming phrases the issues as:

I. Was sufficient evidence presented at trial to support Appellant's conviction?
II. Was Appellant denied a fair trial by the district court's evidentiary rulings?

FACTS

[131 Mr. Willis and Kelly Sondeno initially met in the 1980s when they were both raising and racing thoroughbred horses. In June 1995, Ms. Sondeno experienced difficulties feeding and maintaining the horses she owned. As a result, Mr. Willis agreed to lend her $6,500, to be repaid within a year. In lieu of interest on the executed promissory note, Ms. Sondeno gave Mr. Willis two geldings. Ms. Sondeno insists that, at the same time, they also entered into a lease agreement whereby Mr. Willis would care for several of her horses, breed them to his paint stallions, and keep the foals, Ms. Sondeno claims she sent several horses to Mr. Willis, including the three mares that are the subject of Mr. Willis' criminal prosecution: Wears Like Iron, Miss Pitty Pat, and Hockey Jeans. Although he admitted he did not receive a bill of sale, Mr. Willis argues Ms. Sondeno gave all the horses to him because she could not afford to appropriately care for them.

[14] Over time, Ms. Sondeno made several trips to Mr. Willis' property to check on the horses. In January 1997, Mr. Willis notified her that one of the three mares passed away. In the summer of 1997, Ms. Sondeno went to check on her horses and noticed the other two mares were gone. Mr. Willis told her a veterinarian had put them down due to poor health. In February 1999, Ms. Sondeno became suspicious and did an inventory of the horses. She was able to find only eight. When she confronted Mr. Willis, he maintained he owned the horses.

[T5] In May 1999, a search warrant was executed, and the Wyoming Livestock Board seized the eight remaining horses. An ensuing investigation revealed the three mares did not die as Mr. Willis previously stated but were sold by him for slaughter at the Billings Livestock Commission auction (the auction) on August 24, 1996. The investigation also disclosed Mr. Willis had listed himself as the owner of the horses and he had received a check from the sale in the amount of $1,291.24.

[16] As a result of his sale of the three mares, Mr. Willis was charged with one count of felony larceny by a bailee under § 6-3-402(b), and he pleaded not guilty. A jury trial commenced on March 18, 2000, and he was convieted on March 14, 2000. The trial court sentenced him to five years' probation and ordered him to pay $9,500 in restitution and $100 to the crime victims' compensation account. He appeals from his judgment and sentence.

DISCUSSION

A. Sufficiency of the Evidence

{17} Mr. Willis contends the state did not present sufficient evidence to support his conviction for felony larceny by a bailee. Specifically, he argues he had a good faith belief that Ms. Sondeno gave him ownership of the horses; therefore, he could not be guilty of the crime charged. He further asserts the state did not present sufficient evidence to establish the horses were worth $500 or more, an element necessary to support his conviction. See Wyo. Stat. Ann. § 6-3-402(c)(i) (LexisNexis 2001).

[18] When addressing a claim that the evidence is insufficient to sustain the conviction for a crime, we apply the following standard:

This Court assesses whether all the evidence which was presented is adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State. We will not substitute our judgment for that of the jury when we are applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did.

Hodges v. State, 904 P.2d 334, 339 (Wyo.1995) (citation omitted); see also Robinson v. State, 11 P.3d 361, 368 (Wyo.2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1620, 149 L.Ed.2d 483 (2001). This inquiry does not require a court to determine whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Broom v. State, 695 P.2d 640, 642 (Wyo.1985). Rather, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. This standard gives the trier of fact the responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the facts. Id. " 'Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution" " Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

[19] The evidence must be evaluated in the context of the elements of felony larceny by a bailee, which are set forth in § 6-3-402(b):

(b) A bailee, a public servant as defined by W.S. 6-5 101(a)(vi) or any person entrusted with the control, care or custody of any money or other property who, with intent to steal or to deprive the owner of the property, converts the property to his own or another's use is guilty of larceny.

To sustain Mr. Willis' conviction for felony larceny by a bailee, the state had to prove the following elements beyond a reasonable doubt:

1. On or about the 24th day of August, 1996
2. In Big Horn County, Wyoming
3. The Defendant, Franklin S. Willis
4, While a bailee entrusted with the control, care or custody of any money or property
5. With intent to steal or deprive the owner of the property
6. Converted the money or property to his own use; and
7. The value of the money or property converted was $500.00 or more.

[T10] Mr. Willis does not dispute he sold the mares and retained the proceeds of that sale. He does dispute, however, that he was a bailee and intended to steal or deprive Ms. Sondeno of her ownership interest in the horses. We conclude sufficient evidence was presented at trial to allow a reasonable and rational jury to find the essential elements of the crime of felony larceny by a bailee be-youd a reasonable doubt.

[111] The evidence favorable to the state consisted of testimony that in July 1995 Mr. Willis agreed to lend Ms. Sondeno $6,500 in exchange for two geldings as interest. She then agreed to lease him several mares to breed with his paint stallions, and, in turn, his care for the horses would ease her financial concerns. In 1996, Ms. Sondeno sent the three mares that are the subject of Mr. Willis' criminal conviction to him without a bill of sale. She claims she never transferred ownership of the horses to Mr. Willis. Rather, she maintains they made an oral agreement that Mr. Willis would lease the mares for a period of almost four years and she fully expected their return at the end of the lease term.

[112] Meanwhile, Mr. Willis told Ms. Sondeno that the three mares passed away. After her suspicions were raised, however, she confronted Mr. Willis and learned the three mares were sold at the auction. Mr. Willis later admitted he sold the mares because they were barren and unable to breed with his stallions. This testimony was corroborated by Duane Homewood who stated that, while employed with the Wyoming Livestock Board, he performed a brand inspection for three mares that Mr. Willis intended to sell at the auction. Moreover, a sales receipt for three mares totaling $1,201.24 was introduced.

[113] Two additional witnesses supported Ms. Sodeno's assertion that Mr. Willis was merely a bailee with no ownership interest in the horses. Both witnesses testified they had conversations with Mr. Willis, who told them he was going to use the horses for breeding purposes until Ms. Sondeno became financially secure. Mr. Willis' claim that he in good faith believed he owned the horses and therefore could not have committed the crime charged was fully presented to the jury and clearly rejected as evidenced by the guilty verdict.

[114] Next, Mr. Willis argues the state did not meet its burden of proving the amount of $500 or more, a necessary element of the crime of felony larceny by a bailee. However, when the facts are viewed in a light most favorable to the state, the evidence reveals Mr. Willis sold the three mares on August 24, 1996, at the auction. He received a payment in the amount of $1,291.24, which clearly exeeeds the $500 felony limit. Importantly, Mr. Willis 'admitted he sold three mares on that date, and the brand inspection records revealed three mares with the same general description as the mares in question were sent to the auction.

[115] Despite this evidence, Mr. Willis subsequently vacillated as to whether two of the horses he sold were in fact the particular horses underlying the state's criminal charge. He contends the testimony establishes that two of the mares at issue, Miss Pitty Pat and Hockey Jeans, were bred at the time of the sale at the auction and therefore he would not have sold them to be slaughtered on the date alleged. In support of his contention, Mr. Willis points to the introduction of a Stallion Breeding Report at trial that indicated the two mares were bred. He then notes that the sales receipt relied upon by the state confirms the remaining mare was sold for only $310, an amount less than the requisite $500 or more necessary to support his convietion. Again, Mr. Willis presented evidence to the jury to support his version of the events, but the jury soundly rejected it upon giving a guilty verdict.

It is not our function to weigh the evidence for a determination as to whether or not it is sufficient to establish guilt beyond a reasonable doubt. We have consistently held that even though it is possible to draw other inferences from the evidence presented, it is the responsibility of the jury to resolve conflicts in the evidence. The factfinder-in this case, a jury-did that. The jury is entitled to weigh and disregard the evidence intended to discredit the witnesses for the State. Certainly the jury is not obligated to believe the defendant's «witnesses.

Broom, 695 P.2d at 642 (citations omitted). The evidence could reasonably support the finding that the three mares were sold on the date alleged and the value converted was $500 or more. In sum, we hold that the jury, as a reasonable trier of fact, could find felony larceny by a bailee beyond a reasonable doubt.

B. Evidentiary Rulings

[116] We have repeatedly articulated the standard of review for evidentiary rulings:

- Evidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence. This court will generally accede to the trial court's determination of the admissibility of evidence unless that court clearly abused its discretion.
Solis v. State, 981 P.2d 34, 36 (Wyo.1999) (citation omitted). We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously. "In the absence of an abuse of discretion, we will not disturb the trial court's determination." [Griswold v. State, 2001 WY 14, ¶ 7, 17 P.3d 728, ¶ 7 (Wyo.2001).] The burden is on the defendant to establish such abuse.

Skinner v. State, 2001 WY 102, ¶ 25, 33 P.3d 758, ¶ 25 (Wyo.2001), cert. denied, - U.S. -, 122 S.Ct. 1554, - L.Ed.2d -, 2002 WL 205622 (2002) (some citations omitted).

C. Hearsay

[T17] Mr. Willis claims the trial court incorrectly permitted inadmissible hearsay when it allowed Irene Holland to testify concerning statements made by Mr. Willis' daughter-in-law, Dana Willis. In the state's case-in-chief, Ms. Willis denied having any knowledge pertaining to the final disposition of the three mares at issue. She further denied telling Ms. Sondeno and Ms. Holland that Mr. Willis took the mares to the auction. The state then called Ms. Holland to testify. Over Mr. Willis hearsay objection, Ms. Holland recalled the discussion she and Ms. Son-deno had with Ms. Willis. Ms. Holland testified that Ms. Willis stated Mr. Willis was taking the three mares to the sale. Mr. Willis claims error resulted when the state improperly impeached its own witness, Ms. Willis.

[118] First, any party may attack a witness' credibility, including the party calling the witness. W.R.E. 607. Thus, the fact that the state called Ms. Willis is of no import. Prior inconsistent statements are admissible under W.R.E. 613(b) to impeach by contradiction a witness' trial testimony. W.R.E. 613(b) provides: "Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require." This rule applies when two statements-one made at trial and one made previously-are irreconcilably at odds. In such an event, counsel is permitted to show the discrepancy by extrinsic evidence, if necessary. United States v. Winchenbach, 197 F.3d 548, 558 (1st Cir.1999). The purpose of this type of impeachment evidence is to show a witness to be generally capable of making errors in his testimony. 3A John Henry Wigmore, Evidence § 1017 (Chadbourn rev.1970). In doing so, counsel can resort to the witness' own prior statements in which that witness has given a contrary version. Id.

[119] Prior statements made by a witness are not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statements. W.R.E. 801(d)(1). The use of a prior inconsistent statement is not inadmissible hearsay because it is not offered for the truth of the matter asserted. Rather, it is used as a tool to compare both statements and conclude that the declarant has erred in making one or the other without determining which statement is erroneous. 3A John Henry Wigmore, Evidence § 1018 (Chadbourn rev. 1970).

[T20] Ms. Holland's testimony properly falls within the seope of the Wyoming Rules of Evidence. The state asked Ms. Willis whether she could recall previously stating the three mares were sent to the auction. She was afforded an opportunity to explain or deny the prior inconsistent statement and denied ever making such a statement or knowing what ultimately happened to the horses. The defense then had full opportunity to explore the issue during her cross-examination. Next, the state used extrinsic evidence-Ms. Holland's testimony-to impeach Ms. Willis. Ms. Holland testified that Ms. Willis stated the three mares were sent to the auction. The state was entitled to introduce prior statements made by Ms. Willis that were inconsistent with her trial testimony. Therefore, we conclude the trial court did not abuse its discretion in permitting the impeachment evidence.

D. Documents

[T21] Next, Mr. Willis claims the trial court improperly declined to admit two Jockey Club certificates of foal registration. The first certificate he sought to introduce allegedly indicated Ms. Sondeno transferred ownership of one of her horses-Cherry Labon-to him on September 1, 1989. The state objected to the admission of the certificate on relevancy grounds, and the trial court sustained the objection. The see-ond certificate indicated Ms. Sondeno transferred ownership of another horse-Toy Trader-to him on August 1, 1995. He asserts the introduction of both certificates would have bolstered his theory that Ms. Sondeno intended to transfer ownership of all the horses that he took from her property over time, including the three mares at issue.

[122] As to the second certificate, the record does not reflect whether the trial court overruled or sustained the state's relevancy objection. The record only reveals that the certificate was offered at trial, the state objected to its admissibility, and, following a recess, the certificate was never mentioned again. We agree with the state that the trial court's failure to make a ruling on the record precludes this court from determining whether the trial court abused its discretion. As a proponent of the evidence, the defense should have asked the trial court to make a ruling on the record in order to preserve this issue on appeal. Therefore, we are left to determine whether the trial court improperly denied admission of the first certificate.

[123] Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." W.R.E. 401. "Evidence which is not relevant is not admissible." W.R.E,. 402.

[124] Ms. Sondeno transferred the certificate to Mr. Willis nearly seven years before he obtained the several horses he claims she gave to him and his alleged criminal conduct occurred. Of primary concern is, the certificate does not relate to the three horses underlying Mr. Willis criminal conviction. Furthermore, the remoteness in time of this occurrence does not make her transfer of the ownership of her horses to Mr. Willis, including the three mares, more probable than if the certificate was not introduced. The 1989 transfer of ownership was unrelated to Mr. Willis' conviction in time, intent, and legal effect. See McClellan v. State, 933 P.2d 461, 466 (Wyo.1997). Therefore, we cannot conclude the trial court clearly abused its discretion in denying the admission of this doeument.

E. Cumulative Error

[T25] Finally, Mr. Willis claims the cumulative effect of the claimed errors discussed within this opinion deprived him of a fair trial Since there was no error with respect to any of Mr. Willis' contentions, this court has no premise to consider cumulative error. Pearson v. State, 12 P.3d 686, 692 (Wyo.2000).

[126] Affirmed.

      . Ms. Sondeno claims she leased forty-seven horses to Mr. Willis.


source: Caselaw Access Project

author: EASTAUGH, Justice.

license: Public Domain

text:
    BROOKS RANGE EXPLORATION COMPANY, INC., Appellant, v. Wallace GORDON, Thelma Peterson, and the Gordon Family Trust, Appellees.
    No. S-9600.
    Supreme Court of Alaska.
    May 2, 2002.

      Jay D. Durych, Jones & Colver, LLG, Anchorage, for Appellant.
    Teresa S. Ridle, Koval & Featherly, P.C., Anchorage, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

In a settlement agreement, Brooks Range Exploration Company, Inc. (BREXCO) agreed to transport Wallace Gordon's property to Anchorage, unless transporting it would violate state law. The superior court enforced this agreement without holding an evidentiary hearing, notwithstanding BREX-CO's assertion that transporting the property would violate the Alaska Historic Preservation Act (AHPA). Because there were genuine factual issues about whether transporting items found by Gordon would violate the AHPA, we hold as to the "found" items that it was error to enforce the agreement without conducting an evidentiary hearing. We therefore reverse and remand as to those items that Gordon claimed he found. We affirm the enforcement order as to those items Gordon claims he purchased or received as gifts or in trade.

II. FACTS AND PROCEEDINGS

Until July 18, 1998, Wallace Gordon, Thelma Peterson, and the Gordon Family Trust were shareholders of Brooks Range Exploration Company, Inc. (BREXCO). BREXCO is an Alaska corporation engaged in exploring and developing hard-rock mining claims in Alaska. Gordon, Peterson, and the Gordon Family Trust were also shareholders of Brooks Range Ventures, Inc. (BREVCO), which engaged in placer mining in the Brooks Range.

In 1995 BREXCO filed a superior court complaint against Gordon, Peterson, the Gordon Family Trust, and others; as amended, the complaint alleged numerous causes of action, including breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duties, and usurpation of corporate opportunities and interests. BREVCO intervened as a plaintiff in 1996.

On July 13, 1998 BREXCO and BREVCO each executed separate settlement agreements. with the defendants, including Gordon, Peterson, and the Gordon Family Trust. Especially pertinent to this appeal is paragraph five of the BREVCO settlement agreement, which provides:

WALLACE E. GORDON has identified certain personal property [mining equipment] now located at the mining claims of BREVCO.... BREVCO shall transport said personal property to WALLACE E. GORDON from its present location to Anchorage, Alaska at BREVCO's cost and expense im its "as is" condition on or before April 15, 1999. Until delivery BREVCO agrees to bear any risk associated with the loss or damage to said personal property. In the event BREVCO fails to deliver the personal property on or before April 15, 1999, and WALLACE E. GORDON institutes suit to enforce this provision of the Settlement Agreement and prevails, BREVCO agrees to pay WALLACE E. GORDON's reasonable, actual attorney's fees. The responsibility of BREVCO to transport said personal property is contingent upon the transportation of said property mot constituting a violation of any state, federal or local law, statute or ordinance.

(Emphasis added.) BREXCO and BREVCO merged in June 1999. BREVCO's agreement consequently binds BREXCO. We refer to BREXCO and BREVCO collectively as BREXCO.

In an April 1999 letter, BREXCO informed counsel for Gordon, Peterson, and the Gordon Family Trust (collectively the Gordon Family Trust or the trust) that it would not transport Wallace Gordon's mining equipment to Anchorage. BREXCO asserted that transporting the mining equipment would violate the Alaska Historic Preservation Act, and that the settlement agreement therefore did not require BREXCO to transport the equipment. In late April 1999 the Gordon Family Trust filed a motion in the 1995 proceeding to enforce the settlement agreement; it asked the superior court to order BREX-CO "to immediately transport Mr. Gordon's personal property to Anchorage." In May BREXCO filed a complaint for declaratory judgment, seeking a "declaration that: a) the property items are historic artifacts, b) title to the property rests with the State of Alaska, c) the property does not belong to Gordon, [and] d) [BREXCO] is not obligated to transport the property to Gordon or to otherwise remove it from its current location...."

The superior court consolidated BREX-CO's declaratory judgment "action with the 1995 proceeding. On October 12, 1999 the superior court granted the trust's motion to enforce the settlement agreement and ordered BREXCO to transport Gordon's mining equipment to Anchorage before November 15, 1999. The superior court did not conduct an evidentiary hearing before ruling on the trust's motion to enforce.

BREXCO unsuccessfully moved for reconsideration. The superior court entered a final judgment ordering BREXCO to transport Gordon's mining equipment to Anchorage. BREXCO appeals.

II. DISCUSSION

A. Standard of Review

We review a ruling on a motion to enforce a settlement agreement for abuse of discretion. The superior court may not summarily enforce a settlement agreement without conducting an evidentiary hearing, unless there are no genuine issues of material fact regarding the existence or terms of the agreement. We review de novo the question whether there are genuine issues of fact material to a motion to enforce a settlement agreement.

B. It Was Error To Grant the Trust's Motion To Enforce the Settlement Agreement Without Conducting an Evidentiary Hearing.

1. The Alaska Historic Preservation Act (AHPA)

''Whether it was error to grant the Gordon Family Trust's motion to enforce the settlement agreement without conducting an evidentiary hearing depends in part on our interpretation of the Alaska Historic Preservation Act. The legislature enacted the AHPA in 1971 "to preserve and protect the historic, prehistoric, and archaeological resources of Alaska from loss, desecration, and destruction so that the scientific, historic, and cultural heritage embodied in these resources may pass undiminished to future generations."

To that end, AS 41.35.020 provides: "The state reserves to itself title to all historic, prehistoric, and archeological resources situated on land owned or controlled by the state, including tideland and submerged land, and reserves to itself the exclusive right of field archeology on state-owned or controlled land." Alaska Statute 41.35.230(2) defines "historic, prehistoric and archeological resources" to include "deposits, structures, ruins, sites, buildings, graves, artifacts, fossils, or other objects of antiquity which provide information pertaining to the historical or prehistorical culture of people in the state as well as to the natural history of the state." Alaska Statute 41.35.200(b) states that "[a] person may not possess, sell, buy, or transport within the state, or offer to sell, buy, or transport within the state, historic, prehistoric, or archeological resources taken or acquired in violation of [the AHPA]. ..." (Emphasis added.) Finally, AS 41.35.210 provides that a person who is con-viected of violating a provision of the AHPA is guilty of a class A misdemeanor, and AS 41.35.220 states that a person who violates a provision of the AHPA "is subject to a maximum civil penalty of $100,000 for each violation."

When are historic, prehistoric, and archeological resources "situated on" land owned or controlled by the state for purposes of AS 41.35.020(a)? Webster's New World Dictionary of the American Langauage defines "situated" as "placed as to site or position; located." Thus, under a literal interpretation of the statute, the mere presence, even if temporary, of a historic, prehistoric, or archeological resource on land owned or controlled by the state would be sufficient to vest title to the item in the state, and to trigger the provisions of the AHPA. But where the literal interpretation of a statute would lead to absurd results, courts can interpret the words of the statute to agree with the intention of the legislature.

Here, a literal interpretation of the phrase "situated on" in AS 41.35.020(a) could lead to absurd results. For example, it seems unlikely that the legislature intended that title to personal property that qualifies as a historic, prehistoric, or archeological resource under AS 41.35.230(2) would pass to the state simply because its owner transported the property across state-owned or controlled land, and the property was only temporarily located on state land. We therefore interpret the AHPA to apply only to abandoned historic, prehistoric, or archeological resources situated on land owned or controlled by the state. Indeed, even BREX-CO's brief states: "BREXCO suspects ... that when the Alaska Historic Preservation Act was adopted the Alaska legislature intended that the Act be construed in harmony with existing law, including the statutory and common law pertaining to abandoned property and escheat."

"Abandoned property" is property whose owner has manifested an intention to relinquish all title, possession, or claim to the property.

2. Genuine issues of material fact could not be resolved without an evidentiary hearing.

In deciding whether to enforce an alleged settlement agreement without conducting an evidentiary hearing, courts treat the motion to enforce as a summary judgment motion." Thus, the question [on appeal] is whether the evidence presented to the trial court indicated that there was no genuine issue of material fact and that as a matter of law the parties had entered into a valid compromise agreement."

A party seeking summary judgment must demonstrate the absence of a genuine material factual dispute and entitlement to judgment as a matter of law. In support of its motion to enforce the settlement agreement, the trust submitted the affidavit of Wallace Gordon. In his affidavit, Gordon stated: "I purchased most of the items [of mining equipment located on BREVCO's mining claims] and other items were loaned to me. Only a few of the items on the list were found by me and I found them on my own mining claims" (Emphasis added.) Gordon also attached to his affidavit a handwritten document which listed all of the items and described the source of each item. Because Gordon's affidavit and his attached list indicated that he had found some of the items, the trust did not meet its initial burden of demonstrating the absence of a genuine factual dispute about whether transporting those items would violate the AHPA. As to the other items, Gordon's affidavit and list made out a prima facie showing that they were not subject to the AHPA.

Even if a summary judgment movant has made out a prima facie showing that there is no genuine issue of material fact, the non-moving party may avoid summary judgment by producing competent evidence establishing that a genuine factual dispute exists." BREXCO responded to Gordon's affidavit with the affidavit of Naomi Costello. Costello affied:

When I first visited [BREVCO's mining operation], Gordon was living in an old cabin. I noticed that there were old mining tools, lanterns, utensils, pots, buckets, an anvil, and other items spread around the yard and leaning against the old cabin. The items were obviously very old. They were worn, weathered, and rusted, and many of them had old-fashioned wooden handles. ‘

Costello's affidavit also stated: "Gordon told me that he had gathered the items from various drift mines in the area. . On occasion when I visited, [Gordon] would show me new items that he had gathered and Ae would tell me which old mining site he had collected them from." (Emphasis added.)

Costello's affidavit tended to support Gordon's statement that he had found some of the items he kept in arnd around his cabin. As to items Gordon said he had found, Costello's affidavit demonstrates that there is a genuine factual dispute about whether the found items fall within the AHPA.

Costello's affidavit does not assert that Gordon actually found the items that he had described as having purchased or received. Costello's affidavit therefore creates a genuine, material factual dispute only as to items Gordon admitted he found or Costello expressly claimed Gordon found. Because Costello's affidavit did not create a genuine factual dispute about whether the AHPA applied to items Gordon elaimed he received by gift, trade, or purchase, the court did not err in enforcing the transportation agreement as to those items. But because there was a genuine factual dispute about whether transporting the found items would violate the AHPA, it was error to enforce the transportation agreement without conducting an evi-dentiary hearing as to the found items.

The Gordon Family Trust argues that Costello's affidavit is irrelevant and thus inadmissible because "(1) there is nothing in her Affidavit to indicate that the items she describes are the same items BREXCO agreed to transport in the Settlement Agreement; (2) there is nothing in Ms. Costello's Affidavit to show that the pieces of mining equipment are items covered by the Alaska Historic Preservation Act." The trust also argues that "the Court was free to disregard her opinion testimony because BREXCO presented no evidence that Ms. Costello is a mining expert or that she is competent to testify as to the age and ownership of these items." These arguments are not well taken.

"Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Costello's affidavit was relevant because it tended to establish that at least some of the disputed items were abandoned when Gordon found them. That proposition in turn was relevant to determining whether the items were protected by the AHPA. Costello's affidavit did not specifically indicate whether the items it listed were the same as the items contemplated by the settlement agreement; but her affidavit was nonetheless germane as to those items that Gordon conceded he found. Moreover, because Costello's affidavit did not rely on "scientific, technical, or other specialized knowledge," it did not require a foundation establishing Costello as a mining expert. Indeed, the most relevant portions of Costello's affidavit simply described Gordon's statements regarding the source of the old mining equipment.

The trust argues that the language in paragraph five of the settlement agreement concerning the legality of transporting the mining equipment is a condition precedent which is unenforceable because the condition "is simply not sufficiently unambiguous to be construed as a condition precedent." We are by this argument. Paragraph five expressly states that BREX-CO's performance is "contingent upon the transportation of [the mining] property not constituting a violation of any state, federal or local law, statute or ordinance." (Emphasis added.) This provision is not ambiguous in context of this case.

We conclude that there are genuine issues of material fact about whether the AHPA prohibits transporting the found items. We therefore reverse the enforcement order with respect to the found items and remand for an evidentiary hearing to determine whether transporting those items would violate the AHPA. But because there is no genuine issue of material fact regarding the legality of transporting the rest of Gordon's items, 'we affirm the enforcement order with respect to the equipment Gordon did not find.

C. Attorney's Fees

Paragraph five of the settlement agreement provides for an award of reasonable, actual attorney's fees "[in the event BREVCO fails to deliver the personal property on or before April 15, 1999, and WALLACE E. GORDON institutes suit to enforce this provision of the Settlement Agreement and prevails." The superior court's 1999 final judgment and 2000 corrected final judgment included an award of $8,789.72 to the Gordon Family Trust, apparently for attorney's fees. BREXCO argues that if we reverse the order enforcing BREXCO's obligation under the settlement agreement to transport Wallace Gordon's mining equipment to Anchorage, we must also vacate the attorney's. fees award based thereon. We agree. Having partially reversed the order granting the trust's second motion to enforce the settlement agreement, we must vacate the award of attorney's fees incurred in bringing that motion. We follow the procedure we recently outlined in Gamble v. Northstore Partnership and award nominal fees in this appeal, leaving it to the superior court on remand to award reasonable, actual fees per the contract.

BREXCO also urges us to vacate the superior court's March 10, 2000 award of reasonable, actual attorney's fees incurred as a result of the Gordon Family Trust's third motion to enforce the settlement agreement. BREXCO argues that the March 10, 2000 award is "dependent on, and would not have been entered absent" the superior court's order granting the trust's second motion to enforce the settlement agreement. But the trust's third motion sought an order enforcing BREXCO's obligation under the settlement agreement to pay the trust $38,089.28 annually. The third motion was thus unrelated to the second motion, which sought to enforee BREXCO's obligation to transport Gordon's mining equipment. We therefore decline to vacate the March 10, 2000 award of reasonable, actual attorney's fees incurred in bringing the third motion to enforce the settlement agreement.

IV. CONCLUSION

For these reasons, we REVERSE the order requiring BREXCO to transport Gordon's found mining equipment to Anchorage, and REMAND for further proceedings in accordance with this opinion. We also VACATE the award of attorney's fees granted in the transportation dispute. We AFFIRM the enforcement order to the extent it required BREXCO to transport Gordon's other items, and AFFIRM the trust's award of attorney's fees in the dispute about annual payments.

      . AS 41.35.010-.240.

      . The Gordon Family Trust called this motion the 'Second Motion to Enforce Settlement Agreement."

      . Dickerson v. Williams, 956 P.2d 458, 462 (Alaska 1998) (citing Rice v. Denley, 944 P.2d 497, 499 (Alaska 1997)).

      . Callie v. Near, 829 F.2d 888, 890 (9th Cir.1987) ('Where material facts concerning the existence or terms of an agreement to settle are in dispute, the parties must be allowed an evidentiary hearing."); see also Miller v. Manuel, 9 Haw.App. 56, 828 P.2d 286, 291-92 (1991) (holding that motions to enforce disputed compromise agreements are treated as motions for summary judgment); cf. Rice, 944 P.2d at 499 ("In ruling upon a motion to enter judgment on the record, the superior court 'has discretion to deny the motion if the court determines that material issues of fact exist as to the existence of the settlement agreement or to a material term of the settlement.'" (quoting Pavek v. Curran, 754 P.2d 1125, 1126 (Alaska 1988))); Acevedo v. Burley, 944 P.2d 473, 476 n. 2 (Alaska 1997) (holding that evidentiary hearing is not required in judicial proceeding in absence of genuine issue of material fact).

      . See Miller, 828 P.2d at 291-92 (holding that motions to enforce disputed compromise agreements are treated as motions for summary judgment); Mathis v. Sauser, 942 P.2d 1117, 1120 (Alaska 1997) (holding that grants of summary judgment are reviewed de novo).

      . AS 41.35.010-.240.

      . Ch. 130, § 1, SLA 1971.

      . AS 41.35.010.

      . Webster's New World Dictionary or the American Language 1332 (2d ed.1978).

      . Sherman v. Holiday Constr. Co., 435 P.2d 16, 18-19 (Alaska 1967); see also 2A Norman J. Singer, Sratures anp Sraturory Construction § 46:07, at 196-97 (6th ed.2000).

      . Smith v. State, 510 P.2d 793, 795 (Alaska 1973) (stating that abandonment of property " 'is demonstrated by an intention to relinquish all title, possession, or claim to [the] property, accompanied by some type of activity or omission by which such intention is manifested.'" (quoting Edward G. Mascolo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buff. L.Rev. 399, 400-01 (1970))); see also Kile v. Belisle, 759 P.2d 1292, 1295-96 (Alaska 1988) ("Abandonment is the intentional relinquishment of a mining claim. It is a voluntary act on the part of a claimant and consists of a subjective intent to abandon coupled with an external and objective act by which that intent is carried into effect." (citations omitted)); cf. King v. Petroleum Servs. Corp., 536 P.2d 116, 119 (Alaska 1975) ("'The elements of abandonment of real property are an intent to abandon and conduct carrying out that intention."); D.M. v. State, 515 P.2d 1234, 1237 (Alaska 1973) ("[It may well be that a subjective intent is determinative when dealing with abandonment of personal property, over which the owner exercises an absolute property right...."); 1 Am.Jur. 2d Abandoned, Lost, and Unclaimed Property § 1 (1994) (defining abandoned property as "that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting ownership in any other person, and with the intention of not reclaiming any future rights therein. ...").

      . E.g., Miller, 828 P.2d at 291.

      . Id.

      . Alaska Travel Specialists, Inc. v. First Nat'l Bank of Anchorage, 919 P.2d 759, 762 (Alaska 1996).

      . For example, the list attached to Gordon's affidavit stated: "[Grizzly gold pan] I found about 4 miles down Wild River after a flood on a gravel bar" and "[Large dump bucket arm]-was located at mine site with other items scattered around."

      . Lane v. City of Kotzebue, 982 P.2d 1270, 1272 (Alaska 1999).

      . BREXCO argues that Don Cloyd's affidavit also raised genuine issues of material fact precluding the summary enforcement of the settlement agreement. The Gordon Family Trust responds that because the Cloyd affidavit was submitted in support of BREXCO's motion for reconsideration, which, the trust argues, "did not contain any legal proposition that differed from those originally raised in opposition to the motion for summary judgment," BREXCO may not rely on the affidavit on appeal. We agree with the trust. The new factual material submitted with the reconsideration motion cannot be the basis for claiming the superior court erred. Alaska R. Civ. P. 77(k).

      . See Alaska R. Civ. P. 56(e) ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence. ...").

      . Alaska R. Evid. 401.

      . Alaska R. Evid. 702.

      . Norton v. Herron, 677 P.2d 877, 882 (Alaska 1984) (holding that conditions precedent will not be enforced unless they are "expressed in plain, unambiguous language or arise by clear implication" (citations omitted)).

      . Wood v. Collins, 812 P.2d 951, 957 (Alaska 1991).

      . 28 P.3d 286, 293 (Alaska 2001) ("Where appeals are not dispositive on the merits but merely stepping stones to an as-yet-unknown final result, and where there is a statutory or contractual provision calling for an award of full attorney's fees to the party who ultimately prevails, full fees for work on appeal can best be assessed in the trial court at the conclusion of the case.").

      . Appellate Rule 508(e) ("Attorney's fees may be allowed in an amount to be determined by the court.").

      . The superior court awarded the Gordon Family Trust reasonable, actual attorney's fees of $9,344 "incurred in enforcing BREVCO's settlement obligations for a third time."


author: BRYNER, Justice.

text:
    STATE of Alaska, Petitioner, v. Maureen Alice MALLOY, Respondent.
    No. S-9754.
    Supreme Court of Alaska.
    May 3, 2002.

      Naney R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Petitioner.
    Dan S. Bair, Anchorage, for Respondent.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Under AS 12.55.125(a)(3), a defendant convicted of first-degree murder must receive an unsuspended term of ninety-nine years without eligibility for parole if the sentencing court "finds by clear and convincing evidence that the defendant subjected the murder vie-tim to substantial physical torture." Does this statute impermissibly subject the defendant to increased punishment for an aggravated class of first-degree murder that has not been proved beyond a reasonable doubt to the jury? Because the statute's mandatory sentence falls within the range otherwise authorized for first-degree murder, we hold that AS 12.55.125(a)(3) does not define a new, aggravated class of first-degree murder, but simply imposes a permissible limit on the court's usual sentencing discretion.

II FACTS AND PROCEEDINGS

A jury convicted Maureen Alice Malloy of first-degree murder, kidnapping, and tampering with evidence. Before sentencing, the state gave notice that it would seek a sentence under AS 12.55.125(a)(3); this statute requires the court to impose a maximum, unsuspended term of ninety-nine years when it finds by clear and convincing evidence that a defendant convicted of first-degree murder subjected the victim to substantial physical torture.

In response to the state's notice, Malloy challenged the statute as unconstitutional because it did not require the state to charge the statutorily specified aggravating cireum-stance-substantial physical torture-as an element of the offense or to prove it beyond a reasonable doubt to the jury.

Superior Court Judge Elaine M. Andrews rejected Malloy's constitutional challenge and, after finding by clear and convincing evidence that Malloy had subjected her vie-tim to substantial physical torture, imposed the mandatory sentence under AS 12.55.125(a)(3): a term of ninety-nine years' imprisonment without eligibility for discretionary parole. Despite the mandatory nature of the sentence, Judge Andrews noted that she would have sentenced Malloy to the maximum term for murder even if subparagraph .125(a)(3) had not made it mandatory; Judge Andrews further emphasized that, in her view, Malloy deserved a life sentence without possibility of parole.

Malloy appealed, and the court of appeals affirmed her convictions and sentences except for the sentencing provision that made Malloy ineligible for discretionary parole until she completed serving her term for first-degree murder. The court vacated this parole restriction because it was imposed under AS 12.55.125(a), and the court found that this statute is unconstitutional.

The state petitioned for hearing, challenging the court of appeals's decision declaring AS 12.55.125(a) unconstitutional. We granted the petition to address that issue.

III. DISCUSSION

A. Standard of Review

Constitutional issues present questions of law, which we review de novo. In ruling on questions of law we "adopt the rule that is most persuasive in light of precedent, reason, and policy."

B. Statutory Background

Alaska Statutes 12.55.125(a)(1)-(3) lists three aggravating cireumstances that trigger a mandatory maximum sentence for first-degree murder. In imposing Malloy's first-degree murder sentence, the superior court found by clear and convincing evidence that Malloy had subjected her murder victim to substantial physical torture, the aggravating circumstance listed in AS 12.55.125(a)(3), which attaches when the sentencing court "finds by clear and convincing evidence that the defendant subjected the murder victim to substantial. physical torture." Given this finding, Judge Andrews sentenced Malloy to a ninety-nine-year term of imprisonment for murder, as required under AS 12.55.125(a)(3); under a separate statutory provision-AS 33.16.090(b)-this mandatory sentence barred Malloy from being eligible for discretionary parole: "A prisoner sentenced to a mandatory 99-year term under AS 12.55.125(a) ... is not eligible for discretionary parole during the entire term."

Like the mandatory sentence specified by AS 12.55.125(a)(1)-(8), the maximum discretionary sentence for first-degree murder-also set out in AS 12.55.125(a)-is ninety-nine years; and under AS 12.55.115, a court sentencing a defendant for first-degree murder generally has authority to deny eligibility for discretionary parole, regardless of whether the court finds one of the aggravating cireumstances that trigger a mandatory maximum term under AS 12.55.125(a)(1)-(8).

C. The Court of Appeals's Decision

Upon considering the present case in light of these statutory provisions, the court of appeals found that Malloy's sentence was procedurally flawed because AS 12.55.125(a) improperly allowed the sentencing court to find the existence of the aggravating circumstances that subjected Malloy to an increased mandatory maximum sentence. In context, the court ruled, the factors listed in AS 12.55.125(a)(1)-(8) amounted to elements of a separate, more serious class of first-degree murder, and so should have been formally charged and proved beyond a reasonable doubt to the jury.

In reaching this ruling, the court of appeals relied primarily on Donlun v. State, a case decided by the Alaska Supreme Court in 1974. Donltun involved an offender convicted under Alaska's former burglary statute, which authorized three different maximum burglary sentences: ten years for an ordinary burglary, fifteen years for a burglary committed at night, and twenty years for a burglary in an occupied dwelling. Although Donlun's indietment failed to allege either of the statutorily specified aggravating ciream-stances, the evidence at trial indicated that he had committed his offense in an occupied dwelling at night. The trial court thus explicitly based Donlun's sentence on the premise that he was subject to a maximum term of twenty years.

Donlun appealed, challenging the. superior court's sentencing premise. This court reversed, holding "that where a eriminal statute provides for graded or enhanced ranges of punishments for aggravated instances of the proscribed offense, an indictment charging the offense must specify the aggravating facts before the defendant can be exposed to an increased range of punishment." We grounded this conclusion on general principles of fairness and notice, without saying whether it was constitutionally based: "We believe that if a defendant is to be afforded a fair opportunity to defend against a burglary charge involving aggravated cireumstances, such cireumstances must be set forth in the indictment ... and proven at trial."

In considering Malloy's appeal, the court of appeals read Donlun as stating a rule of law based on the Alaska Constitution. The court construed Donlun to mean

that when a statute provides a greater maximum penalty for a erime based on specified aggravating factors, Alaska's guarantees of due process (Article I, Seetion 7) and of trial by jury (Article I, Section 11) [and also, when a felony is charged, Alaska's guarantee of grand jury indictment (Article I, Section 8) ] require us to treat the statute as creating separate offenses, and to treat the aggravating factors as elements of the aggravated form of the offense. The defendant will not be subject to the greater maximum penalty unless the charging document specifies the pertinent aggravating factors and the State proves these aggravating factors beyond a reasonable doubt at the defendant's trial.[]

Applying this interpretation of Donlun to the case at hand, the court of appeals concluded that Malloy's parole restriction was invalid because Malloy had not been specifically charged and convicted for inflicting substantial physical torture on her murder vice-tim. The court expressly recognized that Alaska law ordinarily empowers sentencing courts "to restrict a defendant's normal eligibility for parole-or deny it altogether." But it nonetheless reasoned that a mandatory parole restriction imposed under AS 12.55.125(a)(1)-(8) "represents a new, harsher penalty" than the usual "maximum penal-

ty" for first-degree murder, since the court's earlier case law had defined "maximum penalty" to mean "the [ninety-nine-year] maximum term of imprisonment, whether or not the sentencing judge restricts or denies parole eligibility."

After emphasizing that AS 12.55.125(a) "not only requires sentencing judges to impose the maximum term of imprisonment that might have been imposed under prior law, but ... also effectively requires sentene-ing judges to exercise their utmost power . to restrict the defendant's parole," the court of appeals found that the challenged statute "establishes a separate maximum penalty for certain offenders convicted of first-degree murder, a penalty that is harsher than the maximum penalty specified for other offenders convicted of this crime." Viewing this finding in light of Doniun, the court declared that AS 12.55.125(a) violated Malloy's constitutional rights to an indictment, a jury trial, and a finding of guilt beyond a reasonable doubt on the issue of substantial physical torture. The court thus vacated Malloy's mandatory parole restriction and remanded the case for resen-tencing.

D. Analysis

When the court of appeals heard Malloy's case and reached its decision, federal constitutional case law on point was unsettled and offered no clear resolution as to whether Malloy had a right to be formally charged with and convicted of aggravating cireum-stances such as those specified in AS 12,55.125(a)(8) before being exposed to the mandatory maximum term for first-degree murder. Because of this uncertainty, the court of appeals chose to view Donlun as a decision grounded on the Alaska Constitution; the court thus extended to Malloy the state constitutional protections that it found implicit in Donlun.

Less than two months after the court of appeals decided Malloy, the United States Supreme Court ended the federal law's lingering uncertainty by deciding Apprendi v. New Jersey, a landmark case interpreting the Fourteenth Amendment's Due Process Clause to incorporate procedural protections that closely mirror the protections that Malloy found embedded in the Alaska Constitution.

Specifically, Apprendi holds that, "[olther than the fact of a prior 'conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt." Conversely put, Ap-prendi forbids treating as a mere sentencing factor any aggravating cireumstance (apart from a prior conviction) that "must exist in order to subject the defendant to a legally prescribed punishment - or in other words, "any fact which is essential to the punishment to be inflicted."

This holding, directly binding on states under the Fourteenth Amendment, lays to rest any controversy over the accuracy of the court of appeals's view that Donlun is grounded on constitutional principles. The court of appeals's explanation of Donlun's state constitutional roots accords with Apprendi. And as the state now recognizes, Donlun accurately presaged Apprendi's holding that aggravating facts must be charged and proved beyond a reasonable doubt to the jury when their existence would allow or require the court to impose a sentence exceeding the maximum otherwise authorized.

But Apprendi does not lay to rest the narrower controversy presented here: whether the court of appeals correctly applied Donlun to Malloy's situation-that is, whether the court of appeals properly concluded that Malloy's murder sentence-a mandatory maximum sentence imposed under AS 12.55.125(a)(B8)-actually exceeds the maximum otherwise authorized.

The state correctly points out that, even without relying on the aggravating circumstances spelled out in the mandatory sentencing provision, Judge Andrews could have sentenced Malloy to exactly the same term that she received under AS 12.55.125(a)8B)-ninety-nine years without possibility of parole. Because Judge Andrews had discretion to impose the same sentence in any event, the state asserts that AS 12.55.125(a)(1)-(8) cannot plausibly be construed to mandate any increase in the potential maximum sentence that might otherwise be authorized. Therefore, the state reasons, neither Donlun nor Apprendi precludes treating the aggravating cireumstances listed in paragraphs 125(a)(1)-(8) as ordinary sentencing factors-and similarly, neither case justifies characterizing the mandatory sentencing statute as a substantive law defining a new crime: aggravated first-degree murder. We agree.

As the court of appeals expressly recognized, the usual maximum sentence for first-degree murder is ninety-nine years in prison, and in all such cases "sentencing judges have the authority under AS 12.55.115 to restrict a defendant's normal eligibility for parole"; the court nonetheless ruled that "AS 12.55.125(a) establishes a separate maximum penalty ... that is harsher than the maximum penalty specified for other offenders convicted of [first-degree murder]." The court gave two reasons for holding that AS 12,55.125(a)(8) exposed Malloy to a harsher maximum penalty even though Judge Andrews could have imposed the same sentence without invoking the mandatory sentencing provision: first, AS 12.55.125(a) not only limits the court's discretion but completely "abolishes the range of sentences in favor of a fixed 99-year sentence"; second, the mandatory parole restriction that attaches to a mandatory term imposed under AS 12.55.125(a) results in a sentence exceeding the definition that the court of appeals usually applies to the term "maximum sentence." In the court's words:

True, sentencing judges have the authority under AS 12.55.115 to restrict a defendant's normal eligibility for parole- or deny it altogether. But we have previously held that a defendant receives a "maximum sentence" if he or she is sentenced to the maximum term of imprisonment, whether or not the sentencing judge restricts or denies parole eligibility. That is, the mandatory sentencing provision in the first-degree murder statute not only requires sentencing judges to impose the maximum term of imprisonment that might have been imposed under prior law, but it also effectively requires sentencing judges to exercise their utmost power under AS 12.55.115 to restrict the defendant's parole.[]

But neither of these reasons supports the conclusion that AS 12.55.125(a) increases the usual maximum sentence for first-degree murder in the manner contemplated by Don-lun and Apprendi-that is, by empowering the court to impose a sentence harsher than the harshest sentence otherwise authorized.

.The court's first reason-that AS 12.55.125(a) eliminates all sentencing discretion and requires the maximum available sentence-bears no relation to the core concern underlying Donlun and Apprendi: protecting a defendant from a higher sentencing range than otherwise possible. In addressing this concern Donlun and Apprendi ree-ognize that an increased sentence resulting from a finding of statutory aggravating circumstances is not a harsher maximum sentence than otherwise authorized unless it falls outside the outer limits of the range of sentences that the court could otherwise impose.

To be sure, any mandatory: sentence that entirely eliminates a judge's sentencing discretion may result in occasional cases where extraordinary circumstances might appear to preclude imposing the mandated sentence without jeopardizing the court's ability to promote Alaska's constitutional sentencing goal of reforming the offender in the particular case at hand. But because this kind of constitutional friction implicates concerns relating to the substantive fairness of a mandatory sentence in particular factual settings, it has little to do with the concerns at issue here, which more narrowly relate to the procedural fairness of "expos[ing] the defendant to a greater punishment than that authorized by the jury's guilty verdict." And as Don-lun emphasized, "where a statute proscribes a single offense and commits a single range of sentences to the discretion of the sentencing court, aggravating facts warranting sentences in the upper spectrum of the range need not be set forth in the complaint or indictment."

Furthermore, a mere possibility of constitutional friction in occasional, extraordinary cases does not justify declaring a statute entirely invalid. And in any event, no realistic danger of any such friction exists in the present case, for Judge Andrews's sentencing comments make it abundantly clear that she firmly believed Malloy's mandatory sentence to be justified and likely would have imposed exactly the same sentence even if AS 12.55.125(a)(8) had not made it mandatory. Hence, the fact that AS 12.55.125(a) left Judge Andrews no choice but to impose the maximum sentence lends no support to the court of appeals's conclusion that the statute exposed Malloy to a sentence "harsher than the maximum penalty specified for other offenders convicted of this crime."

The court of appeals's second reason for céncluding that AS 12.55.125(a) exposed Mal-loy to an increased maximum sentence. was that theﬂ'court had "previously held that a defendant receives a 'maximum sentence' if he or she is sentenced to the maximum term of 1mpr1sonment whether or not the sentencing court judge restricts or denies parole eligibility." But the previous holding referred to in this passage-Capwell v. State-stands for the narrow proposition that parole eligibility should be considered irrelevant for purposes of the rule requiring a sentencing judge to make an express "worst-offender" finding before imposing a maximum sentence. Nothing in Capwell suggests that the rule in Donlun should require courts to deem a nonlparole-restricted maximum term of imprisonment to be the "maximum sentence" normally authorized for first-degree murder. Moreover, if Capwell did suggest this conclusion, then logically Capwell 's definition of "maximum sentence" would apply to both parts of the Donlun analysis: For if parole is transparent when we decide what "maximum sentence" attaches for murder without AS 12.55.125(a)(1)-(8), why is it not just as transparent when we decide if a mandatory "maximum sentence" under that statute is harsher?

In reality, of course, a parole-restricted term of ninety-nine years is undeniably harsher than a ninety-nine-year term that does not restrict a defendant's eligibility for discretionary parole. To apply Capwell's narrow definition of "maximum sentence" in the Donlun context would thus place form over substance. Both Donlun and Apprendi preclude this result; they require us to compare the harshest sentence actually available before a finding of aggravating circumstances under AS 12.55.125(a) with the actual harshness of the sentence that is mandated by such a finding: "[The relevant inquiry is one not of form, but of effeect-does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?"

Because the actual effect of a mandatory parole restriction imposed under AS 38.16.090(b) is identical to that of a parole restriction imposed at the sentencing court's option under AS 12.55.115, and because the optional restriction is independently authorized, it is immaterial that Capwell would call a ninety-nine-year non-parole-restricted murder sentence a "maximum sentence" in a different sentencing context.

We hold, then, that the court of appeals incorrectly applied Donilun to Malloy's situation. The mandatory sentencing provisions of AS 12.55.125(a)(1)-(8) did not subject Mal-loy to a greater maximum penalty than was otherwise authorized.

Mailoy nonetheless urges us to expand Donliun beyond its literal terms and beyond its meaning as interpreted by the court of appeals. Citing Oregon and Hawaii case law, Malloy advocates a state constitutional rule that would require the prosecution to charge -and submit to the jury any aggravating factor that is "intrinsic" to the commission of the charged offense and has the effect of narrowing the sentencing court's range of discretion in any way that disfavors the defendant. Under this approach, for example, Oregon has construed its state constitution to prohibit a mandatory minimum sentence triggered by intrinsic cireumstances not specifically charged and addressed by the jury.

But this approach has been considered by the United States Supteme Court and rejected under the federal constitution. It also conflicts 'with Alaska cases that deal with minimum and presumptive sentencing. The approach finds no support in the text or history of the Alaska Constitution. And it is inconsistent with Donlun's statement reaffirming "that where a statute proseribes a single offense and commits a single range of sentences to the discretion of the sentencing court, aggravating facts warranting sentences in the upper spectrum of the range need not be set forth in the complaint or indictment." For all these reasons, we decline to expand the Donlun rule under the Alaska Constitution to prohibit presumptive or mandatory sentencing factors as long as those factors simply guide or limit a sentencing court's discretion within the existing statutory sentencing range for the offense at issue.

IV. CONCLUSION

Because AS 12.55.125(a) does not violate Donlun or Apprendi, we VACATE the court of appeals's order remanding this case to the superior court for resentencing and AFFIRM the superior court's sentence as originally imposed.

      . The underlying facts of Malloy's offenses are exceptionally 'brutal but are not relevant here; they are summarized in Malloy v. State, 1 P.3d 1266, 1269 (Alaska App.2000).

      . Judge Andrews also sentenced Malloy to a term of ninety-nine years for kidnapping, made sixty years of that term consecutive to the term for murder, and imposed a concurrent five-year sentence for tampering with evidence. Malloy's composite term thus totaled 159 years' imprisonment.

      . Malloy, 1 P.3d at 1290.

      . Id. at 1288, 1290.

      . Malloy v. State, 1 P.3d 1266 (Alaska App.2000), pet. for hrg. granted, File No. S-9754 (Alaska, October 3, 2000). Malloy also petitioned for hearing, challenging the court of appeals's decision to affirm her conviction and total term of imprisonment. We denied Malloy's petition for hearing.

      . Keane v. Local Boundary Comm'n, 893 P.2d 1239, 1241 (Alaska 1995); Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . AS 12.55.125(a)(1)-(3) provides:
      (a) A defendant convicted of murder in the first degree shall be sentenced to a definite term of imprisonment of at least 20 years but not more than 99 years. A defendant convicted of murder in the first degree shall be sentenced to a mandatory term of imprisonment of 99 years when
      (1) the defendant is convicted of the murder of a uniformed or otherwise clearly identified peace officer, fire fighter, or correctional employee who was engaged in the performance of official duties at the time of the murder; {or]
      (2) the defendant has been previously convicted of
      (A) murder in the first degree under AS 11.41.100 or former AS 11.15.010 or 11.15.020;
      (B) murder in the second degree under AS 11.41.110 or former AS 11.15.030; or
      (C) homicide under the laws of another jurisdiction when the offense of which the defendant was convicted contains elements similar to first degree murder under AS 11.41.100 or second degree murder under AS 11.41.110; {or] j
      (3) the court finds by clear and convincing evidence that the defendant subjected the murder victim to substantial physical torture[.]

      . See Malloy, 1 P.3d at 1281 (quoting AS 33.16.090(b)).

      . See above, footnote 8.

      . AS, 12.55.115 provides: "The court may, as part of a sentence of imprisonment, further restrict the eligibility of a prisoner for discretionary parole for a term greater than that required under AS 33.16.090 and 33.16.100."

      . Malloy, 1 P.3d at 1285, 1288-89.

      . Id. at 1288-89.

      . 527 P.2d 472 (Alaska 1974).

      . Malloy, 1 P.3d at 1285, 1288-89.

      . Donlun, 527 P.2d at 473-74 (describing former AS 11.20.080).

      . Id. at 473.

      . Id.

      . Id. at 474.

      . Malloy, 1 P.3d at 1287-89.

      . Id. at 1288.

      . Id. at 1285 (citing AS 12.55.115).

      . Id. at 1285.

      . Id. (footnote omitted) (citing Capwell v. State, 823 P.2d 1250, 1256 (Alaska App.1991)).

      . Id. at 1285.

      . Id. at 1288, 1290.

      . The court of appeals initially ordered the superior court to enter an amended judgment with the parole restriction deleted. Malloy, 1 P.3d at 1290. But after the state filed a petition for rehearing pointing out that the sentencing judge had strongly suggested that she would have imposed the same parole restriction as a matter of discretion under AS 12.55.115 even if AS 12.55.125(a)(3) had not applied, the court amended its mandate to allow the superior court to exercise its discretion on remand with respect to Malloy's eligibility for parole. Malloy v. State, 1 P.3d 1266 (Alaska App., 2000) (order on rehearing).

      . Malloy, 1 P.3d at 1285-86 (discussing the United States Supreme Court's then two most recent decisions on the issue, Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and Jones v. United States, 526 U.S. 227, 119 S.Ct.1215, 143 L.Ed.2d 311 (1999)).

      . See id. at 1287-89.

      . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). ©

      . Id. at 490, 120 S.Ct. 2348.

      . Id. at 499, 120 S.Ct. 2348 (Scalia, Justice, concurring).

      . Id. at 511, 120 S.Ct. 2348 (Thomas, Justice, concurring) (quoting 1 J. Bishop, Commentaries on Criminal Law § 961, pp. 564-65 (5th ed. 1872)).

      . Malloy, 1 P.3d at 1285.

      . Id.

      . Id. (footnote omitted) (citing Capwell v. State, 823 P.2d 1250, 1256 (Alaska App.1991)).

      . See Apprendi, 530 U.S. at 482, 120 S.Ct. 2348; Donlun, 527 P.2d at 474.

      . See Alaska Const. art. T, § 12:
      Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Criminal administration shall be based upon the following: the need for protecting the public, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation.
      Cf. Dancer v. State, 715 P.2d 1174, 1177—79 (Alaska App.1986) (discussing the three-judge sentencing panel's safety-valve function in the context of a due process challenge to Alaska's presumptive sentencing system).

      . Apprendi, 530 U.S. at 494, 120 S.Ct. 2348.

      . Donlun, 527 P.2d at 474; cf. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (upholding Pennsylvania's Mandatory Minimum Sentencing Act).

      . Malloy, 1 P.3d at 1285.

      . Id. (footnofe omitted).

      . 823 P.2d 1250, 1256 (Alaska App.1991), cited in Malloy, 1 P.3d at 1285 n. 47.

      . Alternatively stated, if AS 12.55.115's general conferral of power to deny parole eligibility in all first-degree murder cases does not authorize a "maximum sentence" exceeding a non-parole-restricted term of ninety-nine years, then, similarly, AS 33.16.090(b)'s specific directive to restrict parole for sentences imposed under AS 12.55.125(a) seemingly would not cause those mandatory sentences to exceed the otherwise authorized "maximum sentence."

      . Apprendi, 530 U.S. at 494, 120 S.Ct. 2348.

      . See State v. Janto, 92 Hawai'i 19, 986 P.2d 306, 320 (1999); State v. Tafoya, 91 Hawai'i 261, 982 P.2d 890 (1999); State v. Wedge, 293 Or. 598, 652 P.2d 773 (1982).

      . Wedge, 652 P.2d at 775, 778; cf. Tafoya, 982 P.2d at 902 (stating that "for constitutional purposes, there is no distinction between extended and mandatory minimum enhanced sentencing. Both constrain the discretion of the sentencing judge and fix the term of incarceration imposed ... as a result of the conviction.").

      . Apprendi, 530 U.S. at 482, 120 S.Ct. 2348 (when imposing judgment within the sentencing range prescribed by statute, courts may consider sentencing factors relating both to the offense and the offender); see also McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (approving mandatory minimum sentencing law).

      . Notably, the court of appeals has consistently upheld both presumptive sentencing and mandatory sentencing statutes as constitutionally valid. See, e.g., Abdulbagui v. State, 728 P.2d 1211 (Alaska App.1986) (affirming enhanced presumptive sentence as constitutional); Dancer v. State, 715 P.2d 1174, 1177-79 (Alaska App.1986) (upholding Alaska's presumptive sentencing statutes against a due process challenge); Huf v. State, 675 P.2d 268, 273 (Alaska App.1984) (holding that a- six-year mandatory minimum sentence merely limited the judge's discretion within the penalty range of up to twenty years, when the trial court found that the defendant possessed or used a firearm during the commission of a felony). More notably still, in Abdulbagui the court disapprovingly commented on the approach adopted in Wedge, observing that the Oregon decision conflicted with the court of appeals's ruling in Huf v. State. 728 P.2d at 1220.

      . Donlun, 527 P.2d at 474.