source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    John T. CLEAVER, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee.
    No. S-9689.
    Supreme Court of Alaska.
    June 7, 2002.

      Bruce B. Weyhrauch, Law Office of Bruce B. Weyhrauch, Juneau, for Appellant.
    Shannon O'Fallon, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

In his first attempt at participating in the Northern Southeast Inside Sablefish Long-line fishery, John Cleaver "called it a season" after only two days because his homemade wooden bait chute was too dangerous, his equipment for fishing halibut proved inadequate for sablefish, and his line got tangled in the gear of other fishers. To qualify for skipper participation points towards a permanent limited entry permit, Cleaver characterized his problems as an "extensive mechanical - breakdown." The - Commercial Fisheries Entry Commission did not accept that characterization, and denied Cleaver the points he needed for a permit. The superior court affirmed the commission's decision and awarded attorney's fees to the state. We affirm in all respects.

II FACTS AND PROCEEDINGS

In 1973 the Alaska legislature enacted the Limited Fisheries Entry Act. The act established the Commercial Fisheries Entry Commission and charged it with the duties of "regulat[ing] entry into the commercial fisheries for all fishery resources in the state" and "establish[ing] priorities for the application of the provisions of this chapter to the various commercial fisheries of the state." The legislature required that the prioritization of fishery applicants be based on a reasonable balance of an applicant's degree of economic dependence on. the fishery and extent of past participation in the fishery.

The commission determined that the Northern Southeast Inside Sablefish Long-line fishery could sustain a maximum of seventy-three commercial fishers. The commission developed regulations to prioritize applicants for fishery permits using a one-hundred point seale with points awarded for economic dependence, vessel investment, and past participation. The commission decided that all applicants with eighty-one to one hundred points would be given permanent entry permits because they would suffer significant economic hardship by exclusion from the fishery. The permits remaining after the "hardship" applicants received permits would be awarded to those applicants with the highest point totals. As the applicants' point claims were verified,. the commission periodically calculated the minimum points required.for a permit based on the remaining number of permits and the point totals of the remaining applicants. Applicants who fell below this "denial point level" became ineligible for a permit. The remaining applicants-those with less than the eighty-one points but more than the current denial point level-received interim permits while their applications were being verified and processed.

In 1972 John Cleaver began commercial fishing in Alaska as a troller. In 1979 Cleayer bought the F/V DrEp Sma and fished for salmon and halibut. During the spring of 1983, he attempted to longline for sablefish for the first time in the Northern Southeast Inside Sablefish Longline fishery. Cleaver assumed that longlining for sablefish would be similar to the fishing at shallower depths that he had done previously.

Cleaver had several problems during his first attempt at longlining for sablefish in April 1983. First, the halibut anchors that Cleaver used were not heavy enough to get to the depths of sablefish. Second, the bait chute that he built was dangerous. Cleaver's makeshift wooden bait chute allowed the lines to bounce up and down to the extent that he feared for the safety of his crew. Third, Cleaver's depth sounding equipment gave readings in meters instead of fathoms, which Cleaver said gave him trouble judging the depth. As Jana Sushy, one of Cleaver's two deckhands who was on her first longline trip, admitted, "none of us really knew the proper details or overall concept." Cleaver's gear got tangled with the gear of another fisher, and Cleaver gave up longlining for sablefish after two days. Cleaver landed only 385 pounds of sablefish. Although the fishery was opened later that year between September 1-7 and October 10-14, Cleaver did not attempt to longline for sablefish again in 1983 because he did not have enough money to correct the problems with his equipment.

After the 1983 season, Cleaver bought the necessary equipment for longlining sablefish. In 1984 Cleaver successfully participated in the fishery.

In 1987 Cleaver applied for a permanent entry permit to the Northern Southeast Inside Sablefish Longline fishery. He claimed a total of sixty-five points: eighteen skipper participation points for the 1984 fishing season, seventeen skipper participation points for the 1983 fishing season, fifteen points for income dependence, and fifteen points for vessel investment. The commission originally found that Cleaver qualified for only forty and one-half points. The commission allowed only seven and one-half points for vessel investment because Cleaver's wife was a co-owner of the F/V DEEp Sma, and it disallowed any points for skipper participation in 1988, presumably because Cleaver's participation that year was so minimal. Cleaver timely requested an administrative hearing. At the hearing, Cleaver argued that he should get all fifteen points for vessel investment and seventeen points for skipper participation in 1983 based on extraordinary cireumstances.

In 1991 a hearing officer decided that Cleaver was entitled to the full fifteen points for vessel investment because the Cleavers purchased the F/V DeEp Sga as joint tenants to satisfy the financing bank's requirements and because Wendy Cleaver was not applying for a permit in the fishery. But as to skipper participation in 1983, the hearing officer found that Cleaver failed to prove that he was entitled to skipper participation points based on extraordinary cireumstances because he abandoned his intent to participate, because his loss of financial ability to continue in the fishery did not constitute an extraordinary cireumstance, and because he failed to demonstrate that he made all reasonably possible efforts to participate in the fishery. The commission adopted the hearing officer's decision as a final decision after sixty days.

Cleaver filed a petition for administrative review, a request to accept a late-filed petition, and a request for an interim permit. The commission declined to accept Cleaver's late petition to reopen his application because he "failed to demonstrate due diligence from the time of his actual notice of the hearing officer and final commission decisions" and because his "underlying substantive claim fail{ed] to present a genuine issue that would warrant further administrative proceedings." The commission also denied Cleaver an interim use permit.

Cleaver appealed to the superior court. Superior Court Judge Patricia A. Collins affirmed the commission's decision and awarded attorney's fees of $8,039 to the state, which was twenty percent of the 101.3 hours spent on the appeal at a market rate of $150 per hour. Cleaver now appeals both the denial of his petition to review his application and the award of attorney's fees to this court.

III. STANDARDS OF REVIEW

In administrative appeals, we directly review the agency action in question. We review the commission's factual findings under the substantial evidence standard. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." We apply. a deferential "reasonable basis" standard of review to an agency's interpretation of its own regulations. Our review of the commission's application of the law to the facts is limited to whether the decision was arbitrary, unreasonable, or an. abuse of discretion.

We review a superior court's award of attorney's fees for abuse of discretion.

IV. DISCUSSION

A. -The Commission Did Not Err by Refusing To Give Cleaver Skipper Participation Points for 1983 Based on Extraordinary Circumstances.

Cleaver argues that his difficulties longlining during the 1983 sablefish season met the criteria for extraordinary circumstances and that the commission erred in refusing to award him skippér participation points for that year.

Title 20 AAC 05.705(a)(1) sets out the schedule for skipper participation points for 1982-84. To be eligible for the points for a certain year, the regulation requires the applicant to have commercially harvested at least 2,000 pounds of sablefish in the fishery as a skipper. Cleaver harvested only 385 pounds of sablefish in 1983. Accordingly, he was not eligible to elaim skipper participation points for 1983 under 20 AAC 05.705.

Under 20 AAC 05.703(d), however, an applicant may be awarded points he was otherwise ineligible to claim if extraordinary circumstances prevented his participation. The hearing officer applied a three-part test to determine whether an applicant was entitled to participation points because of extraordinary cireumstances: (1) whether the applicant had the specific intent to participate in the fishery, (2) whether he was prevented from doing so due to some extraordinary cireamstances, and (8) whether, despite those cireumstances, he made all reasonably possible efforts to participate in the fishery.

1. Specific intent

The hearing officer found that Cleaver onee had the specific intent to participate in the fishery but abandoned that intent "after discovering that his set-up on the DEEP SEA was both inadequate and dangerous and concluding that he couldn't afford to make the necessary changes that year." The commission's decision to deny Cleaver's petition for reconsideration noted several portions of the hearing transcript where Cleaver indicated that he gave up his specific intent to participate that year. In one portion, Cleaver testified that: |

it had been my intention to fish ... in-in '883, I had had some friends that told me that was a good thing to do and I was-I wanted to do it, but I-I felt that I was going to-with the equipment that I had, I probably ran the risk of endangering other people's gear and my crew, hurting somebody. and I didn't think it was safe or plausible to do it, so I chose not to.

Later in the hearing, the hearing officer and Cleaver had this exchange:

Hearing Officer: [YJou just called it a day then?
Mr. Cleaver: Yeah, I called it a season ... [.] Hearing Officer: Season.
Mr. Cleaver: ... for the [sablefish].

In a third excerpt, Cleaver volunteers that he gave up:

Hearing Officer: Okay. So this happened back in April? .
Mr. Cleaver: Right.
Hearing Officer: You had your two days, you had this landing. ...
Mr. Cleaver: And I gave it up at that point. «

By his own testimony, Cleaver candidly admitted that he abandoned his intent to participate in 1983.

Furthermore, Cleaver made no attempt to participate in the two openings in the fishery later in the year during the periods of September 1-7 and October 10-14. During the first opening, Cleaver was trolling for salmon; during the second, he had already returned to Seattle for the season. Substantial evidence supports the hearing officer's finding that Cleaver abandoned his intent to participate.

2. Extraordinary circumstances

The commission's regulations give examples of what situations constitute extraordinary cireumstances. "Extraordinary cireum-stances include ... the loss of vessel or equipment through sinking, destruction, or extensive mechanical breakdown.... Extraordinary cireumstances do not include ... loss of the financial means to continue participation in the fishery."

The commission interpreted the extraordinary circumstance of extensive mechanical breakdown to exclude the problems encountered by first-time participants in the fishery. The commission reasoned that Cleaver's "lack of financial resources to mechanically refit his vessel is a problem so common to first-time entrants that it does not qualify as an extraordinary cireumstance.... [PJrob-lems faced by first-time entrants are far too common to be treated as extraordinary, unavoidable, or special cireumstances."

The commission's interpretation is reasonable. The term "extraordinary" excludes the common. The term "mechanical breakdown" implies that the equipment worked at- some point. Inability to properly use equipment and unsuitability of equipment are not generally considered to be "mechanical breakdowns." Thus, the commission's interpretation is reasonable under the regulation.

We have previously approved of the commission's similar interpretation of the term "unavoidable cireumstances" in a parallel regulatory situation. In Alaska Commercial Fisheries Entry Commission v. Russo, Russo argued that he was entitled to points under the "unavoidable - cireumstances" clause of 20 AAC 05.630(2)(5), similar to Cleaver's claim for points under the "extraordinary circumstances" clause of 20 AAC 05.703(d). In Russo, we upheld the commission's interpretation limiting "unavoidable cireumstances" to cases where fishers were "prevented from fishing by circumstances beyond their control." Although the words "extraordinary" and "unavoidable" have slightly different meanings, both are used to describe problems of an extreme nature. Both regulations allow the commission the discretion to award past participation points if extreme circumstances prevented the applicant's participation. Here, the difficulties Cleaver encountered during his first attempt to longline for sablefish were common to other first-time entrants and thus were not exceptional.

Cleaver's lack of experience and appropriate equipment do not constitute extraordinary cireumstances, and neither does Cleaver's financial inability to resolve those problems. The record demonstrates that Cleaver simply lacked the economic . resources to participate in the fishery. The hearing officer found that Cleaver "lost the financial ability to continue in the fishery." At the hearing, Cleaver stated that "I didn't have the money to really set up properly for-for [sablefish]" and that "I had to make some major changes and to make those major changes during the season would have been-I-I just couldn't have done it. We were too financially strapped to get it accomplished in time for the 1983 ... season in the fall." However, while substantial evidence supports the hearing officer's finding that, Cleaver could not participate in the fishery due to financial problems, the commission has consistently disallowed points for unavoidable circumstances when the problems were lack of money, equipment, or experience faced by a first-time entrant in the fishery. Thus the commission's application of the law to the facts of this case is not arbitrary, but rather consistent and reasonable.

3. All reasonably possible efforts to participate

, The hearing officer found that Cleaver did not make all reasonably possible efforts to participate because he did not seek a loan for the estimated $4,000 of modifications, equipment, and repairs he needed to enable him to safely longline for sablefish - Although Cleaver now presents evidence that he did ask one bank for a loan, he testified to the contrary at the hearing:

Hearing Officer: I take it then, you didn't try to get the $4,000 loan from anybody in order to get-get the gear in shape to make the [indise.].
Mr. Cleaver: I was right up to my neck in loans. I couldn't-couldn't even think about it.

Even if Cleaver did make an attempt to get a loan, that single effort is not inconsistent with the hearing officer's finding. Substantial evidence supports the hearing officer's finding that Cleaver did not make all reasonably possible efforts to participate in 1988.

We uphold the commission's decision because the factual findings were supported by substantial evidence, the commission's interpretation of the term "extraordinary circumstances" was reasonable, and its application of that interpretation was not arbitrary.

B. The Superior Court Did Not Abuse Its Discretion by Its Award of Attorney's Fees.

Cleaver argues that the superior court abused its discretion in awarding attorney's fees. The superior court awarded $3,039, which was twenty percent of $15,195, the state's total claimed attorney's fees. The state calculated its claim for attorney's fees by multiplying its attorneys' actual hours spent preparing the appeal, 101.3 hours, by a market rate of $150 per hour.

Alaska Rule of Appellate Procedure 508(e) grants a superior court sitting as an intermediate court of appeal broad discretion to award attorney's fees. If the court finds that the appeal was frivolous or brought simply for the purposes of delay, full, actual fees may be awarded. Otherwise, awards of attorney's fees under Alaska Appellate Rule 508(e) "should only partially compensate the prevailing party for attorney's fees." The appellate court may exercise "its sound discretion and award a substantial sum as partial attorney's fees, if persuaded the amount of fees to be awarded is justified and reasonable." A superior court may also look to Alaska Rule of Civil Procedure 82(b)(2) as a guideline for a reasonable award of attorney's fees.

We discern no abuse of discretion in the superior court's award of attorney's fees. The state prevailed on all appealed issues. Because the superior court did not make an express finding that the appeal was frivolous, full attorney's fees are not permitted. But even if the superior court had substituted the state's 1997 billing rate, $94.72 for its internal clients, as suggested by Cleaver, the award of $3,039 is only about thirty percent of the state's attorney's fees. Given this partial award of attorney's fees, the superior court's broad discretion under Appellate Rule 508(e), the weakness of Cleaver's substantive claims, and the remaining facts and circumstances of this case, the superior court's award was not an abuse of discretion.

v. CONCLUSION

Because the commission did not err in refusing to give Cleaver skipper participation points and because the superior court's award of attorney's fees was not an abuse of discretion, we AFFIRM the commission's denial of a limited entry permit and the superi- or court's award of attorney's fees.

      . See ch. 79, § 1 SLA 1973; Vik v. Commercial Fisheries Entry Comm'n, 636 P.2d 597, 598 (Alaska 1981). The act is now codified at AS 16.43.010-.990.

      . AS 16.43.100(a)(1) & (2); 16.43.020. see also AS

      . AS 16.43.250(a).

      . 20 - Alaska - Administrative - Code 05.310(f)(1) (2000); 20 AAC 05.320(e)(1). (AAC)

      . 20 AAC 05.701-.713.

      . 20 AAC 05.711(a).

      . AS 16.43.210(a); 20 AAC 05.415(a).

      . "Longlining" uses baited hooks on offshoots (gangions or leaders) of a single main line (usually several miles long) to catch fish. "Trolling" is towing individual fishing lines behind a moving boat.

      . ' Sablefish are also known as black cod.

      . Cleaver made his claims under 20 AAC 05.705.

      . Although the commission's décision denied Cleaver's request for a 1999 interim use permit, Cleaver's appeals to the superior court and this court have resulted in issuance of interim use permits to him by the commission under the requirement of Kalmakoff v. State, Commercial Fisheries Entry Comm'n, 697 P.2d 650, 652 (Alaska 1985).

      . Northern Alaska Envtl. Cir. v. State, Dep't of Natural Res., 2 P.3d 629, 633 (Alaska 2000).

      . Jones v. Commercial Fisheries Entry Comm'n, 649 P.2d 241, 249 n. 4 (Alaska 1982).

      . Commercial Fisheries Entry Comm'n, State v. Baxter, 806 P.2d 1373, 1374 (Alaska 1991) (quoting Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)).

      . Bartlett v. State, Commercial Fisheries Entry Comm'n, 948 P.2d 987, 990 (Alaska 1997).

      . Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982) (citing State, Dep't of Admin. v. Bowers Office Prods., Inc., 621 P.2d 11, 13 (Alaska 1980)).

      . Stosh's I/M v. Fairbanks N. Star Borough, 12 P.3d 1180, 1183 (Alaska 2000).

      . 20 AAC 05.705(a)(1) provides:
      (A) Skipper participation points may be claimed for a given season subject to the requirement that the applicant must have commercially harvested at least 2,000 pounds of sablefish in the fishery as a skipper. A rebutta-ble presumption exists that the applicant was a crewmember and not a skipper for that season if the applicant had only one day with landings in the fishery and the sablefish poundage from that day's landings represented less than 15 percent of the total sablefish poundage delivered from the vessel during that season in the fishery.
      (B) An applicant may claim skipper participation points for the 1982-1984 seasons as shown in the following schedule:
      Season Available Points
      1984 18
      1983 17
      1982 16

      . 20 AAC 05.705(a)(1)(A).

      . 20 AAC 05.703(d) provides:
      If extraordinary circumstances prevented an applicant from participating in the fishery in a given season, the commission will, in its discretion, award the applicant those points the applicant could reasonably have claimed but for the extraordinary circumstance. Extraordinary circumstances include temporary illness or disability, the loss of vessel or equipment through sinking, destruction, or extensive mechanical breakdown, and other similar objectively verifiable causes of non-participation. Extraordinary circumstances do not include, for example, voluntary or involuntary retirement from the fishery, permanent illness, permanent disability, or loss of the financial means to continue participation in the fishery.

      . Id.

      . 833 P.2d 7 (Alaska 1992).

      . Id. at 8.

      . Id. at 9-10.

      . E.g., In re Lundahl, CFEC File No. 75-642 (July 17, 1991) ("The problems he encountered (primarily, 'gearing up') were not unique to this applicant; rather, they are common among those entering a fishery for the first time."); In re Anderson, CFEC File No. 75-624 (May 7, 1982) (Inability to obtain financing is not, by itself, an unavoidable circumstance.... [The costs and difficulties incurred in entering a fishery must be faced by all fishermen." (internal quotation marks omitted)); In re Vick, CFEC File No. 75-756 (October 27, 1982).

      . 20 AAC 05.703(d).

      . Alaska R.App. P. 508(e) provides:
      Atiorney's {ees may be allowed in an amount to be determined by the court. If such an allowance is made, the clerk shall issue an appropriate order awarding fees at the same time that an opinion or an order under Rule 214 is filed. If the court determines that an appeal or cross-appeal is frivolous or that it has been brought simply for purposes of delay, actual attorney's fees may be awarded to the appellee or cross-appellee.

      . Municipality of Anchorage, Police & Fire Ret. Bd. v. Coffey, 893 P.2d 722, 731 (Alaska 1995).

      . State Pub. Employees Ret. Bd. v. Cacioppo, 813 P.2d 679, 685 (Alaska 1991) (quoting Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487, 501 (Alaska 1991)).

      . Id.; see also Stalnaker v. Williams, 960 P.2d 590, 598 (Alaska 1998) (affirming award of eighty-six percent of actual fees).

      . See Carr-Gottstein Props. v. State, 899 P.2d 136, 148 (Alaska 1995).


text:
    In the Matter of the LAST WILL AND TESTAMENT OF Gay Dawn TAMPLIN.
    No. $S-9830.
    Supreme Court of Alaska.
    June 7, 2002.
    Jan Van Dort, Juneau, for Appellant Larry Daly.
    BethAnn Boudah Chapman, Faulkner Ban-field, Juneau, for Appellee Gayleen Hays.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Gay Dawn Tamplin died in October 1998 leaving a will executed in May 1998 and a revocable inter vivos trust created in 1998. The 1998 trust was funded solely by her condominium and the 1998 will purported to leave the condominium to her .partner, Larry Daly. The superior court held that the will did not revoke the trust or withdraw the condominium from the trust and that the condominium was transferred to Gay Dawn's daughter, Gayleen, on Gay Dawn's death under the terms of the trust. We affirm the decision of the superior court and hold that in the circumstances of this case a will cannot revoke an inter vivos trust. ~

II. FACTS AND PROCEEDINGS

A. Facts

Gay Dawn Tamplin died on October 6, 1998. Six years earlier, in October 1992, Gay Dawn met Larry Daly. Sometime shortly after meeting, Gay Dawn and Larry began living together in Gay Dawn's Spaulding Beach condominium located at Auke Bay. Gay Dawn and Larry continued to live together in the condominium until Gay Dawn's death.

Gay Dawn established a revocable inter vivos trust on September 20, 19983. The trust was initially funded solely by the condominium that Gay Dawn owned. Gay Dawn deeded the condominium to the trust by quitclaim deed. The deed was recorded in the Juneau recording district on October 1, 1998. Gay Dawn was the sole beneficiary of the trust during her lifetime and her daughter, Gayleen Hays, was the trustee. Mark Hays, Gayleen's husband, was the alternate trustee if Gayleen was unable to perform the trustee's duties.

Gay Dawn reserved the right to make additional contributions to the trust, or to withdraw all or any part of the properties from the trust, during her life. The trust did not specify a means of revocation. Upon Gay Dawn's death, the trust was to terminate and the property was to go to Gayleen if she was living. If Gayleen was not living, the property was to be distributed in the following order based on who was living: Gayleen's daughter, Serina; Mark; and then Larry.

In May 1998 Gay Dawn was diagnosed with pancreatic cancer and was not expected to live much longer. While in the hospital on May 9, 1998, Gay Dawn drafted a document titled "To whom it may concern my Last Will & testament." In the will, Gay Dawn expressed her love for Larry and purported to leave him the condominium. Gay Dawn also expressed her love for Gayleen, Mark, and Serina and her wish that the family decide what to do with her personal belongings. The will does not mention the trust and does not attempt to expressly withdraw the condominium from the trust. Gay Dawn signed the will twice; the will was also signed by a notary public. The will was apparently not shown to Mark or Gayleen until sometime in September 1998, shortly before Gay Dawn's death.

Gayleen gave Larry notice to quit the condominium on November 4, 1998, which Larry did. In March 1999 Larry filed a lis pendens against the condominium to keep Gayleen from selling it. The lis pendens was based on his belief that the condominium was a probate asset that he was entitled to under the May 1998 will.

B. Proceedings

In March 1999 Larry petitioned the superi- or court for formal probate of Gay Dawn's May 1998 will and appointment of Larry as personal representative. Gayleen filed an opposition to Larry's petition, claiming that the May 1998 will was invalid because Gay Dawn lacked testamentary capacity and Larry exerted undue influence upon Gay Dawn. Gayleen also asked the court to appoint her as. the personal representative of the estate and asserted various counterclaims against Larry. Finally, Gayleen filed a motion to declare the condominium an asset of the trust and for removal of the lis pendens filed by Larry against the condominium. Larry opposed Gayleen's motion to declare the condominium an asset of the trust and filed a cross-motion for summary judgment.

The superior court held that Gay Dawn's 1998 will was not a sufficient act to revoke or modify the trust. The superior court found that the condominium was transferred to the trust by quitclaim deed and that the deed was recorded in the Juneau recording district. A transfer of this nature, the superior court held, required "more than a testamentary wish in a will to reconvey" the condominium to Gay Dawn. To remove the condominium from the trust, the superior court stated that an express wish to revoke the trust or a request to the trustee to reconvey the land was needed. The superior court reasoned that a person cannot pass on what she does not own. Since the will became effective at death but the trust gave Gay Dawn only a life interest, she no longer owned the condominium when the will became effective. The superior court held that there was no legal act that evidenced Gay Dawn's intent to remove the condominium from the trust. As a result of this ruling, the condominium passed to Gayleen.

Larry appeals.

IIL - STANDARD OF REVIEW

Whether Gay Dawn's 1998 will revoked her trust or withdrew the condominium from the trust is a question of law. We exercise our independent judgment on questions of law. We "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

The Superior Court Did Not Err in Finding that the 1998 Will Did Not Revoke the Trust or Withdraw the Condominium from It.

Larry argues that the superior court erred in finding that Gay Dawn's 1998 will did not revoke the trust Larry contends that the superior court should have focused on giving effect to the decedent's final expression of intent as to the disposition of the condominium. Larry states that "the last, clear statement of donative intent should be given effect regardless of whether that statement is found in a trust, will or other legally valid document." In support of this argument, Larry relies on AS 18.06.010.

We have defined a trust as "'a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.'" Specifically, an inter vivos trust is a "trust that is created and takes effect during the settlor's lifetime." The settlor is the person who creates the trust. A trust is revocable by the settlor "if and to the extent that by the terms of the trust he reserved such a power." We have not previously ruled on the appropriate means of revocation of an inter vivos trust when no means are specified by the terms of the trust document.

Here, the parties do not dispute the validity of the trust or that it was revocable by Gay Dawn. It is also undisputed that the trust terminated on Gay Dawn's death. The validity of the will is not contested in these proceedings. The sole question here is whether the condominium is part of Gay Dawn's probate property under the 1998 will or remains in the trust.

Courts of other states have found that a will cannot terminate a trust where the power to revoke the trust ends with the settlor's death. In Ridge v. Bright, Lottie Roscoe McMillan created a trust funded by stock for her benefit during her lifetime and then the stock vested absolutely in her niece, Virginia Bright, after her death. McMillan subsequently executed a will that specifically devised her automobile to Bright and also made Bright a residuary beneficiary of the will. The executor of McMillan's will challenged the trust, contending that it was revoked by gifts made to Bright in the will. The North Carolina Supreme Court held that a will does not become effective until death and, unless the trust instrument provides otherwise, the power to revoke a trust must be exercised before the death of the settlor. Therefore, McMillan's devise to Bright in the will did not revoke the trust.

The Alaska legislature has followed the same path and, in 2000, decided that it is the policy of this state not to allow a will to revoke a trust. In AS 18.36.340, the legislature rejected the relatively more lenient trust revocation approach of the Uniform Trust Code and provided that the writing used to revoke a revocable trust must be "other than a will."

In light of the legislature's enactment of AS 13.36.3840, we adopt the rule that a will cannot revoke a trust where the trust does not so provide. It is true that AS 18.86.340 does not control this case because the statute was enacted in August 2000, long after the execution of Gay Dawn's 1998 will and her October 1998 death. However, through the statute, the legislature has made it clear that it is the policy of this state not to allow revocation of a revocable trust by will. In other cases, we have adopted a statutory approach as the common law to govern the interim period before the statute becomes effective. By doing this, we have tried to maintain consistency and predictability in the law governing situations such as this, where the common law rule appears consistent with the legislature's subsequent policy declaration, or where the common law rule is unsettled. We find it appropriate to adopt the statutory rule in this case in order to provide continuity between the common law and AS 18.86.340. -

v. CONCLUSION

We AFFIRM the superior court's ruling that the 1998 will did not revoke the inter vivos trust or serve to withdraw the condominium from the trust.

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

      . Id.

      . Although the superior court found both that "the 1998 will did not revoke the Trust [and did not] serve to withdraw the condominium from the Trust," the analysis of these two findings is the same for two reasons: (1) Larry did not present any separate arguments for withdrawal, and (2) the trust is funded solely by the condominium, which means that withdrawing the condominium would be tantamount to revoking the trust.

      . - AS 13.06.010 states in relevant part:
      (b) The underlying purposes and policies of AS 13.06-AS 13.36 are to
      (2) discover and make effective the intent of a decedent in distribution of the decedent's property....

      . Buack's Law Dictronary 1516 (7th ed.1999).

      . - Restatement (Seconp) or Trusts § 3 (1959).

      . Id. at§ 330.

      . Alaska State Employees Ass'n v. Alaska Pub. Employees Ass'n, 825 P.2d 451, 459 (Alaska 1991) (quoting Restatement (SEconp) or Trusts § 2 (1959).

      . Larry expressly abandons the issues involving the award of partial judgment and attorney's fees in his brief.

      . See Gabel v. Manetto, 177 N.J.Super. 460, 427 A.2d 71, 74 (1981) (stating that "[slince a will does not take effect until after a testator's death, it is not the proper instrument to revoke a trust when the power to do so is an inter vivos power); Barnette v. McNulty, 21 Ariz.App. 127, 516 P.2d 583, 586 (1974) (stating that "the trust instrument stated that revocation could occur only during the lifetime of the settlor and since the will he executed did not take effect during his lifetime, we cannot consider the provisions of the will as a revocation of the trust"); of. Mayer v. Tucker, 102 N.J. Eq. 524, 141 A. 799, 800 (1928) (holding that there was not sufficient evidence of settlor's intent to revoke, but, even if there was, a trust could not be revoked by the will because the right had to be exercised during the life of the settlor).

      . 244 N.C. 345, 93 S.E.2d 607 (1956).

      . Id. at 608.

      . Id. at 613.

      . Id. at 613.

      . AS 13.36.340 states in relevant part:
      (a) A trust that is revocable by the setilor may be modified or revoked in whole or in part by
      (1) substantial compliance with a method of modification or revocation provided in the trust instrument; or
      (2) a writing, other than a will, signed by the settlor and delivered to the trustee during the lifetime of the settlor, except that, if the trust instrument expressly makes the method of revocation provided in the trust instrument the exclusive method of revocation, the trust may not be revoked under this paragraph.

      . The Uniform Trust Code has never been adopted in Alaska.

      . AS 13.36.340(a)(2). The only exception to this rule is where the trust document specifically allows - for - revocation - by - will. AS 13.36.340(a)(1). That situation is not presently before us.

      . AS 01.10.090 states that "[njo statute is retrospective unless expressly declared therein."

      . See Hansen v. Stroecker, 699 P.2d 871, 874 (Alaska 1985) (quoting Massachuselis Supreme Court's statement that "(allthough the statute operates prospectively, the Legislature has clearly expressed the policy of the Commonwealth and we feel that this court is justified in applying that policy to the provisions under consideration" in deciding whether the wait and see approach should be applied to the rule against perpetuities); Whittlesey v. State, 626 P.2d 1066, 1068 (Alaska 1980) (holding that new criminal sentencing standards not in effect at the time of the crime were "useful and relevant in the determination of an appropriate sentence under the present circumstances" as the most recent expression of legislative policy).


author: MANNHEIMER, Judge.

text:
    STATE of Alaska, Appellant, v. Gregory Arthur ROZAK, Appellee.
    No. A-7980.
    Court of Appeals of Alaska.
    May 31, 2002.

      Sabrina E.L. Fernandez and Lance B. Nelson, Assistant Attorneys General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
    Arthur S. Robinson, Robinson & Beiswen-ger, Soldotna, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

This appeal requires us to interpret 5 AAC 89.107, 'a regulation enacted by the Board of Fisheries to govern the operation of fishing gear. This regulation establishes a general rule that people who own a permit to operate stationary fishing gear (eg., set nets or fish wheels) must remain at the site of their gear while it is operating. Gregory Arthur Rozak is a Cook Inlet set netter who was prosecuted for violating this requirement. This appeal arose when the district court dismissed the prosecution against Ro-zak.

The underlying question is the meaning of subsection (£) of 5 AAC 89.107. Magistrate David S. Landry concluded that subsection (f) exempted permit holders in the Yukon-Northern fishing area from the normal requirement that they remain at the site of their fishing gear while it is operating. Magistrate Landry then concluded that this exemption was unreasonable-that the disparate treatment was not justified by any purported difference between the Yukon-Northern fishing area and other fishing areas of the state. Based on these conclusions, Mag~istrate Landry ruled that 5 AAC 39.107 unfairly discriminated against Rozak and all other stationary gear permit holders who fished outside the Yukon-Northern area.

As explained in more detail below, we have examined the language of the regulation and we have also reviewed the audio tapes of the Board of Fisheries' discussion when they drafted and enacted subsection (£). Based on our review, we conclude that the district court misinterpreted this subsection. The Board of Fisheries' discussion shows that subsection. (f) was not intended to exempt Yukon-Northern area permit holders from the normal requirement that they remain at the site of their gear while it is operating. Rather, the Board of Fisheries intended subsection (£) to clarify or augment those restrictions for permit holders in the Yukon-Northern area. j

To the extent that 5 AAC 39.1078) might call for disparate treatment among permit holders, it is Yukon-Northern permit holders who face greater restrictions, and thus Rozak (a Cook Inlet permit holder) is a beneficiary of the disparate treatment. For this reason, we reverse the decision of the district court and reinstate the prosecution against Rozak.

The regulatory language at issue in this appeal |

Subsection (d) of 5 AAC 39.107 establishes the general rule that a person who owns a permit to operate stationary fishing gear "must be physically present at a beach or riparian fishing site during the operation of [the] stationary fishing gear at the site". Subsection (d) allows a permit holder to leave an active fishing site for only two purposes: to travel to or from the location of "a sale of fish caught in [their] gear", or to travel to or from the location of "other stationary gear of the [same] permit holder".

Subsection (e) of 5 AAC 839.107 clarifies these two exceptions to the requirement of physical presence. This subsection declares that when a permit holder travels to a point of sale or to the location of their other stationary gear, the permit holder "shall [remain] within a reasonable distance of the gear". Subsection (e) then defines "reasonable distance" to mean "a distance that ensures that the ... permit holder retains competent supervision of the gear".

These two subsections are augmented by subsection (£), and this subsection is the crux of the present appeal. Subsection (£) announces a special rule for stationary gear permit holders in the "Yukon area ... described in 5 AAC 05.100". (The reference to "Yukon" appears to be a clerical mistake; according to 5 AAC 05.100, the name of this fishing area is officially the "Yukon-Northern" area.) Under subsection (£), a permit holder for stationary fishing gear in the Yukon-Northern area "must be physically present for the initial deployment of the gear at the beginning of the commercial fishing period and at the end of the commercial fishing period to terminate operation of the gear". The issue is whether this requirement is intended to supersede or, instead, supplement the restrictions codified in subsections (d) and (e).

The meaning of subsection (f)

This court addressed the meaning of 5 AAC 39.107(F) in Baker v. State, 878 P.2d 642 (Alaska App.1994). In Baker, we declared that subsection (f) "appears to strengthen, not relax, the requirement of the permit-holder's presence". Specifically, we interpreted subsection (£) as meaning that

even in circumstances when [subJsections (d) and (e) might allow the permit-holder to be absent from the immediate site of the gear, the permit-holder must nevertheless be present at the immediate site of stationary gear for the opening and closing of each commercial fishing period.

Baker, 878 P.2d at 647.

In the present case, Magistrate Landry was aware of our decision in Baker, but he evidently concluded that we had misread the regulation.

Now, in addition to examining the language of the regulation, we have also reviewed the audio tapes of the Board of Fisheries discussion when they drafted and enacted subsection (f). Based on our review of this legislative history, we confirm our earlier interpretation of the regulation. The Board of Fisheries discussion shows that subsection (f) was not intended to exempt Yukon-Northern. area permit holders from the normal requirement that they remain at the site of their gear while it is operating. Rather, the Board of Fisheries intended that all permit holders continue to be bound by the normal restrictions on their movement; subsection (f) was meant to clarify or augment those restrictions for permit holders in the Yukon-Northern area.

Subsection (f) was first proposed to the Board of Fisheries for the purpose of addressing certain difficulties that had arisen when law enforcement officers attempted to enforce subsections (d) and (e) in the Yukon, Northern fishing area. As explained above, subsections (d) and (e), taken together, require stationary gear permit holders to remain at the site of their gear whenever it is operating, except. when the permit holders are selling fish or tending to their other stationary gear, in which case they must remain within a "reasonable distance" of their gear so as to maintain "competent supervision" over it. Subsection (£) was initially drafted to clarify what "reasonable distance" meant in the Yukon-Northern fishing area.

In the Yukon-Northern area, permit holders would sometimes travel long distances to sell their fish. This long travel meant that permit holders would be absent from their gear for relatively long periods. These lengthy absences created an enforcement problem for fish and wildlife protection officers: when the officers found unattended stationary gear, they could not be 'sure whether the permit holder was violating the law or was instead engaged in a lengthy but authorized absence to sell their fish or attend to their other stationary gear.

There was also confusion concerning how far permit holders could range from their stationary gear. One fish and wildlife protection officer apparently had interpreted "reasonable distance" to mean "shouting distance"-effectively making it impossible for permit holders to keep their gear operating if they had to travel any distance to sell fish or tend to their other gear.

To address these problems, the Board initially contemplated adopting a supplemental definition' of "reasonable distance" for the Yukon-Northern area. As proposed, "reasonable distance" in the Yukon-Northern area would mean "a distance that ensures that the ... permit holder is capable of removing the gear [from the water] or stopping the operation of the gear at the end of the fishing period." Eventually, however, the Board decided not to change the definition of "reasonable distance" in subsection (e). As explained by Board Chairman Bud Hodson:

_ [IH a trooper landed at a site and the permit holder wasn't there, and say the permit holder came back two and one-half hours later and the trooper asked him, "Where have you been?" and he said, "I've 'been delivering fish" and ... the trooper says, "Where?" and he says, "Well, down there at Nulato [on the Yukon River)," and the trooper says, "Wait a minute-that's only a fifteen-minute boat ride, you've been gone for two and one-half hours or three hours," that ... would mean that he didn't just go deliver fish and [that cireumstance] probably would be able to be construed that he wasn't in competent supervision. On the other hand, if the person came back after two and one-half hours and said, "Hey, I just went on a forty-mile boat ride down here to deliver my fish, you can go check the fish ticket and I've got witnesses-you know, it takes me one hour and forty minutes to get there and one hour and forty minutes to come back, and I was there ten minutes, and this regulation [allows] me to do that because it says I can go deliver my fish at a reasonable distance", we felt that it was at the discretion of the trooper and that if somebody was going to be gone for a lengthy amount of time that they probably could make a case. But we just couldn't see any other way to more closely define [reasonable distance] to help out [enforcement officers] to try to make a case on somebody who really wasn't tending their gear.

Board of Fisheries debate on Proposal 856 (February 27, 1990).

Instead of amending the definition of "reasonable distance", the Board enacted subsection (f). Based on Chairman Hodson's statements during the debate, the intent of this new subsection was to clarify that, notwithstanding a permit holder's right to be absent from their stationary gear under subsections (d) and (e), permit holders in the Yukon-Northern area were obliged to be physically present when they deployed their gear at the start of the fishing period and when they stopped the operation of the gear at the end of the fishing period.

The Board's discussion as a whole indicates that their objective in enacting subsection (£) was to balance the state's interest in ensuring that permit holders maintain competent supervision over their gear against the permit holders' interest in keeping their gear running while they transported fish over long distances to points of sale. The Board's discussion also clarifies that subsections (d) and (e) were intended to apply to stationary gear permit holders throughout the state-including the Yukon-Northern area-while subsection (f) would apply only to permit holders within the Yukon-Northern area.

Conclusion

The district court's decision to dismiss the prosecution against Rozak was premised on the court's conclusion that 5 AAC 39.1078) unlawfully discriminated in favor of stationary gear permit holders within the Yukon-Northern area by exempting them from the movement restrictions codified in 5 AAC 39.107(d)-(e). As just explained, this conclusion was erroneous. Subsections (d) and (e) apply to all stationary gear permit holders within the state, including permit holders who operate stationary gear within the Yukon-Northern area. Subsection (£) does not supersede subsections (d) and (e); rather, it supplements these provisions. To the extent that subsection (£) calls for disparate treatment of Yukon-Northern area permit holders, Rozak is a beneficiary of this disparity.

For these reasons, the judgement of the district court is REVERSED. The district court is directed to reinstate the prosecution against Rozak.

      . 5 AAC 05.100 states: "The Yukon-Northern Area includes all waters of Alaska between the latitude of Point Romanof.and the latitude of the westernmost point of the Naskonat Peninsula, including those waters draining into the Bering Sea, and all waters of Alaska north of the latitude of the westernmost tip of Point Hope and west of 141° W. long., including those waters draining into the Arctic Ocean and the Chukchi Sea."

      . Id. ar 647.

      . See Board of Fisheries debate on Proposal 356 (February 26, 1990). Before it was amended to its final form, the proposed amendment read:
      In the Yukon area, a person who holds a crew member fishing license may operate stationary fishing gear under supervision of a CFEC permit holder who is within a reasonable distance of that gear. A reasonable distance means a distance that ensures that the CFEC permit holder is capable of removing the gear or stopping the operation of the gear at the end of the fishing period.

      . See Board of Fisheries debate on Proposal 356 (February 26, 1990), statement of Captain Gil-son, Alaska State Troopers, Fish and Wildlife Protection Division.

      . See Board of Fisheries debate on Proposal 356 (February 26, 1990), statement of Rich Cannon, Alaska Department of Fish and Game.

      . See Board of Fisheries Proposal 356.

      . See Board of Fisheries debate on Proposal 356 (February 27, 1990), statement of Chairman Hodson.

      . Id.


author: Justice MARTINEZ

text:
    The PEOPLE of the State of Colorado, Petitioner, v. Jesse Allen DEROULET, Respondent.
    No. 008SC626.
    Supreme Court of Colorado, En Banc.
    May 28, 2002.
    As Modified on Denial of Rehearing July 1, 2002.

      Jeanne M. Smith, District Attorney, Gordon R. Denison, Deputy District Attorney, Office of the District Attorney, Colorado Springs, Colorado, Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner.
    David S. Kaplan, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent. °
   Justice MARTINEZ

delivered the opinion of the Court.

We granted certiorari in this case to determine whether a criminal defendant is entitled, upon request, to a proportionality review of his sentence under Colorado's habitual criminal statute, as amended in 1993, and, if so, whether the sentencing court erred in reducing defendant Jesse Deroul-et's sentence. We hold that a defendant is entitled, upon request, to an abbreviated proportionality review of a sentence under the habitual criminal statute as amended in 1993, even when the sentence imposed is less than a life sentence. However, we find that the trial court erred in reducing Deroulet's sentence and thus reverse the judgment. The trial court held that Der-oulet was entitled to a proportionality review and conducted that review by hearing evidence presented by Deroulet regarding his underlying felony convictions. The trial court concluded that because of the nature of the underlying felonies, the statutorily mandated thirty-six-year sentence would be unduly harsh. Accordingly, the trial court reduced Deroulet's sentence to twenty-two years imprisonment. The court of appeals affirmed. People v. Deroulet, 22 P.3d 989, 946 (Colo.Ct.App.2000). The court of appeals rejected the People's contention that proportionality is built into the current habitual criminal statute based on the 1998 amendments. We granted certiorari.

We hold that the trial court correctly determined, and the court of appeals properly affirmed, that Deroulet was entitled to a proportionality review of his sentence under the habitual criminal statute as amended.

'After reviewing the relevant facts and procedure, we briefly discuss the controlling legal framework of the proportionality principle, which is discussed at length in our companion case, Close v. People, 48 P.3d 528 (Colo. 2002), also issued today. Based on this framework, we conclude that an abbreviated proportionality review, as opposed to an extended pfoportionality review, was required in this case. Application of that same framework, however, reveals that the statutorily mandated sentence was not unconstitutionally disproportionate and, therefore, the trial court erred in reducing Deroulet's sentence.

I. Facts and Procedure

Deroulet was convicted of first-degree burglary, third-degree assault, theft, harassment, and two counts of being an habitual criminal. The two underlying offenses for which Deroulet was adjudicated an habitual criminal were forgery and attempted possession of a schedule I controlled substance. The charges and convictions stemmed from two incidents involving Deroulet's former girlfriend. The second incident occurred when Deroulet was on bond following his arrest for the first incident.

Deroulet was to be sentenced under Colorado's habitual criminal statute, section 16-13-101, 6.C.R.S. (2001). The applicable seetion of the habitual criminal statute directed that Deroulet be sentenced to three times the twelve-year maximum in the presumptive range for the class three felony of first-degree burglary. § 16-183-101(1.5), 6 C.R.S. (2001). The trial court conducted a proportionality review and declined .to impose the thirty-six-year sentence mandated by the habitual criminal statute. Instead, the trial court imposed a twenty-two-year sentence. In doing so, the trial court rejected the prosecution's argument that a principle of proportionality is included in the habitual criminal statute as amended in 1993, and as a result proportionality reviews were no longer appropriately conducted by trial courts imposing sentences under the habitual eriminal statute.

The court of appeals affirmed. Deroulet, 22 P.3d at 946. It, too, rejected the prosecutor's contention that proportionality reviews are no longer proper under the amended habitual criminal statute. Relying on People v. Merchant, 983 P.2d 108 (Colo.Ct.App.1999), for the proposition that no sentence is per se constitutional, the court of appeals found that the 1993 amendments to the habitual criminal statute did not diminish the importance or applicability of the proportion, ality principle to sentences imposed under that statute. Deroulet, 22 P.3d at 946. As for the trial court's decision to reduce Der-oulet's sentence, the court of appeals concluded, without extensive discussion, that "the court could properly impose the lesser sentence of years." Deroulet, 22 P.3d at 946.

II Controlling Law

The principle of proportionality at issue in this case, grounded in the Eighth Amendment, is discussed at length in the companion case of Close v. People, 48 P.3d 528 (Colo.2002), also issued today. We will thus not repeat our lengthy discussion of those principles here. We will instead only summarize the principles and controlling law regarding proportionality reviews.

A. United States Supreme Court Precedent

As reviewed in Close, the contours of current Eighth Amendment proportionality review in non-capital cases have been defined predominantly by five United States Supreme Court cases, which have established the following principles for proportionality reviews. First, the Eighth Amendment includes a principle of proportionality that, very generally, requires that the sentence "fit" the crime; no sentence is per se constitutional. See Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Second, although a great deal of deference is due to legislative determinations regarding sentencing, courts do have the authority to conduct proportionality reviews as long as such reviews are guided by objective principles. See Solem v. Helm, 463 U.S. 277, 290, 108 S.Ct. 3001, 77 L.Ed.2d 687 (1983); Rummel v. Estelle, 445 U.S. 268, 274, 100 S.Ct. 1183, 68 LEd.2d 382 (1980). Third, the principle of proportionality included in the Eighth Amendment is narrow, only forbidding "grossly disproportionate" sentences. Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring). - Fourth, reviewing courts must only complete an abbreviated proportionality review when a defendant challenges a sentence on proportionality grounds. Id. An abbreviated proportionality review involves two sub-parts, namely comparing the gravity of the offense and the severity of the punishment. Id. Only when an abbreviated proportionality review gives rise to an inference of gross disproportionality does a reviewing court need to engage in an extended proportionality review. Id. at 1004-05. An extended proportionality review involves a comparison of the sentences imposed on other criminals who commit the same crime in the same jurisdiction and a comparison of the sentences imposed for commission of the same crime in other jurisdictions. Id. (citing Solem, 463 U.S. at 290-292, 103 S.Ct. 3001). Finally, proportionality reviews are not specifically limited to cases involving mandatory life sentences and sentences imposed pursuant to habitual criminal statutes. See generally Hutto v. Davis, 454 U.S. 370, 377, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (Powell, J., concurring).

B. Colorado Precedent

As noted in Close, our precedent has closely followed that of the Supreme Court. Additionally,: however, our precedent has carved out guiding principles specific to Colorado. In particular, we have delineated certain crimes as "grave or serious" for purposes of proportionality reviews. When a erime is "grave or serious" a reviewing court may proceed directly to consider the severity - of the punishment. -

Pursuant to United States Supreme Court precedent, our case law has established the following proportionality principles. First, Colorado courts are required to grant an abbreviated proportionality review, when requested, when a life sentence is imposed under the pre-1993 habitual

criminal statute or under a statute mandating a life sentence. People v. Smith, 848 P.2d 365 (Colo.1998)(abbreviated proportionality review of mandatory life sentence in non-habitual criminal statute case); Alvarez v. People, 797 P.2d 37, 40 (Colo.1990)(abbreviated proportionality review of life sentence imposed under former version of habitual criminal statute); People v. Hernandez, 686 P.2d 1825 (Colo.1984)(proportionality review of life sentence under former version of habitual criminal statute). Second, Colorado has adopted the "rule of Harmelin" articulated in Justice Kennedy's concurrence, namely that only an abbreviated proportionality review is necessary when the crimes supporting an habitual criminal statute sentence include "grave or serious" offenses. People v. Gaskins, 825 P.2d 30, 86 (Colo.1992). Third, Colorado has adopted Solem's approach to determining what constitutes a "grave or serious" crime, namely by considering the harm caused or threatened to the victim or to society and the culpability of the offender. Id. (citing Solem, 463 U.S. at 292, 103 S.Ct. 8001). Fourth, some crimes have been determined to be "grave or serious" for purposes of proportionality review, thereby negating the need for utilizing Solem's considerations to make such a determination. Specifically, the crimes of aggravated robbery, robbery, burglary, accessory to first-degree murder, and narcotic-related crimes are all "grave or serious" for the purposes of proportionality review. Gaskins, 825 P.2d at 37. Fifth, no remand is necessary in cases where an extended proportionality review is unnecessary; in such cases an appellate court may conduct an abbreviated proportionality review. Id. at 37-38. Finally, as we announced in Close, each consecutive sentence must be considered separately for proportionality review purposes. See Close, 48 P.3d at 588-89.

C. The Habitual Criminal Statute

When conducting an abbreviated proportionality review under the habitual criminal statute, a reviewing court must seru-tinize the offenses in question to determine "whether in combination they are so lacking in gravity or seriousness" so as to suggest that the sentence is grossly disproportionate. Gaskins, 825 P.2d at 36; People v. Mershon, 874 P.2d 1025, 1031 (Colo.1994). Because the defendant has already been sentenced, and presumably served such sentences, for the underlying crimes upon which the habitual criminal adjudication rests, it is proper for a reviewing court to assess the gravity or seriousness of the triggering crime together with the gravity or seriousness of the underlying crimes when determining whether a sentence under the habitual criminal statute is unconstitutionally disproportionate.

III. Application of Controlling Law to This Case

The question that distinguishes this case from the companion case is whether a proportionality review continues to be required, when requested by a defendant, under the habitual criminal statute as amended in 1998. We find that it does.

Prior to the 1993 amendments, the habitual criminal statute mandated a life sentence. In 1993, the statute was amended. The 1993 amendments directed that a defendant twice previously convicted of a class 1,2,8,4, or 5 felony be sentenced to three times the maximum of the presumptive range for the class of felony for which he was convicted. § 16-13-101(1), 8A C.R.S. (Supp.1998). The 1998 amendments further directed that a defendant three times previously convicted as a felon to be sentenced to four times the maximum of the presumptive range for the class of felony for which he was convicted. § 16-13-101(2), 8A CRS (Supp.1993). Finally, the 1993 amendments retained the mandatory life sentence for those defendants who had been three times previously convicted of a felony and were subsequently convicted of a felony under the crime of violence statute. § 16-183-101(2.5), 8A C.R.S. (Supp.1998).

The People argue that the constitutionally required proportionality principle is included in the amended habitual criminal statute because that statute no longer requires the imposition of a life sentence. Instead, because the amended statute provides for mandatory sentences to a term of years that vary in length according to the severity of the underlying felony, the People contend that a defendant such as Deroulet, who faces a term of years as opposed to a life sentence, does not have the right to the procedural requirements of either an abbreviated proportionality review or an extended proportionality review. The People further contend that granting defendants the right to the procedural requirements of a proportionality review will enable such defendants to subpoena voluminous records from the district attorney's office, which would in turn pose logistical difficulties that would render a sentencing hearing for an habitual criminal unnecessarily complex and burdensome.

It is clear from the 1993 amendments to the habitual criminal statute that sentences imposed under that statute are now graduated and are no longer a uniform, mandatory life sentence. Compare § 16-18-101, 8A CRS.: (Supp.1998) with § 16-13-101, 8A C.R.S. (1986). However, we are not persuaded that these amendments negate the necessity of an abbreviated proportionality review.

We disagree that the 1998 amendments to the habitual criminal statute include a principle of proportionality so as to render sentences imposed under the amended statute immune from proportionality review. We recognize that the amended habitual criminal statute, which increases the sentence for a triggering offense by three- or four-fold arguably results in sentences that are more proportionate than the mandatory life sentences required by the old habitual criminal statute. However, any increase in proportionality is only with regard to the triggering offense. The underlying offenses, except for their mere existence, are not considered by the habitual eriminal statute for proportionality purposes. Thus, the amendments to the habitual criminal statute, while arguably reflecting proportionality concerns vis-a-vis the triggering offense, do not address proportionality concerns vis-a-vis the entire group of crimes underlying an habitual criminal adjudication and sentence. '

The danger of any habitual criminal statute is that its formulaic and formalistic nature creates a possibility that a sentence imposed will be unconstitutionally disproportionate. A statutory scheme cannot guarantee a sentence that is constitutionally proportionate to a particular defendant convicted of a particular crime under particular cireum-stances. While habitual eriminal statutes give guidance to sentencing courts regarding gross disproportionality, a finding that courts are stripped of the ability to conduct a proportionality review, even under the most proportionality-precise of habitual criminal statutes, would result in an Eighth Amendment analysis of that particular statutory scheme, as opposed to an Eighth Amendment analysis of the particular defendant's sentences for a particular crime: Thus, an abbreviated proportionality review is required when requested by a defendant. We stress, however, that we have little doubt that in most instances the General Assembly's determinations regarding the sentencing of habitual criminals will result in constitutionally proportionate sentences. As a result, in almost every case, the abbreviated proportionality review will result in a finding that the sentence is constitutionally proportionate, thereby preserving the primacy of the General Assembly in crafting sentencing schemes. Additionally, the requirements of conducting an abbreviated proportionality review are minimal and therefore do not create a burden for sentencing courts.

Several other considerations support our conclusion that an abbreviated proportionality review is required, upon request, under the habitual criminal statute as amended. First, nothing in the plain language of the statute precludes a proportionality review from being conducted. Second, the United States Supreme Court has held that no penalty is per se constitutional. See Solem, 463 U.S. at 290, 108 S.Ct. 3001. That Court has also held that proportionality reviews are properly completed with regard to felony prison sentences. Id. at 288, 108 S.Ct. 8001; Harmelin, 501 U.S. at 1001-02, 111 S.Ct. 2680. Third, a sentence imposed under the amended habitual criminal statute continues to raise a concern about the special dangers that were present in the former version of the habitual criminal statute, namely that a defendant's sentence will be increased by a sentencing court that does not have an opportunity to assess the gravity of the underlying convictions unless and until it conducts an abbreviated proportionality review: "The provisions of the Habitual Criminal Act cereate a unique possibility that a defendant will receive a ... sentence which is not proportionate to the crime for which the defendant has been convicted." Alvarez, 797 P.2d at 40. Although such concern may be present to a lesser degree under the amended habitual criminal statute, the concern is not eliminated.

Taken together, all of these considerations lead us to conclude that the importance of, 'and requirement of, the narrow principle of proportionality embodied in the Eighth Amendment is applicable to sentences imposed under the habitual criminal statute as amended. See Solem, 468 U.S. at 291-92, 108 S.Ct. 3001; see also Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680; Merchant, 983 P.2d at 116.

Although we hold that a proportionality review was required in this case notwithstanding the amendments to the habitual criminal statute, we stress that only an abbreviated proportionality review is required. See Harmelin, 501 U.S. at 1001-02, 111 S.Ct. 2680; Mershon, 874 P.2d at 1031. If, and only if, an abbreviated proportionality review gives rise to an inference of gross dispropor-tionality is a court required to complete an extended proportionality review. Not only does this rule address the People's concern regarding creating burdensome procedural requirements that would hinder sentencing courts from operating efficiently, the rule requiring only an abbreviated proportionality review is all that is required under Harmelin and Alvarez. Harmelin, 501 U.S. at 1001-02, 111 S.Ct. 2680 (Kennedy, J., concurring); Alvares, 797 P.2d at 40. Again, an abbreviated proportionality review consists of a comparison of two sub-parts, the gravity of the offense and the harshness of the penalty, to discern whether an inference of gross dispro-portionality is raised. Harmelin, 501 U.S. at 1001-02, 111 S.Ct. 2680. Accordingly, the trial court properly conducted an abbreviated proportionality review in this case.

Although we find that the trial court correctly determined that an abbreviated proportionality review was required in this case, we find that the trial court erred in deciding that the thirty-six-year sentence mandated by the statute was constitutionally infirm. Case law is clear that legislatively mandated sentencing schemes are to be given great deference by courts engaging in proportionality reviews. - See generally Harmelin, 501 U.S. at 998, 111 S.Ct. 2680; Smith, 848 P.2d at 374.

Additionally, the Supreme Court has recognized that courts "lack clear objective standards to distinguish between sentences for different terms of years." Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring). - As a result, "the relative lack of objective standards concerning terms of imprisonment has meant that 'outside of the capital context, successful challenges to the proportionality of a particular sentence [are] exceedingly rare.'" Id. (quoting Solem, 463 U.S. at 289-90, 108 S.Ct. 3001)(emphasis in original); see also Solem, 468 U.S at 294, 108 S.Ct. 3001 ("For sentences of imprisonment, the problem is not so much one of ordering, but one of line-drawing. It is clear that a 25-year sentence generally is more severe than a 15-year sentence, but in most cases it would be difficult to decide that the former violates the Eighth Amendment while the latter does not."). Thus, it is clear that courts will rarely be in the position to adjust a sentence to a term of years by a handful of years in either direction; to engage in such fine-tuning goes beyond the search for gross disproportionality and improperly injects courts into the realm of determining specific sentencing schemes, which is the province of the General Assembly. For these reasons, the trial court erred in adjusting Deroulet's sehtence to a term of years from thirty-six years to twenty-two years.

An abbreviated proportionality review reveals that thirty-six years is not disproportionate given the severity of the crimes. Deroulet was convicted of first-degree burglary, which we have previously held is a grave or serious crime for the purposes of a proportionality review; nothing here suggests a contrary conclusion. See Gaskins, 825 P.2d at 37. Thus, we need not weigh the considerations articulated by the Solem Court for determining whether the offense of first-degree burglary was grave or serious under the first sub-part of the abbreviated proportionality review. Instead, we are able to proceed to consider the second sub-part of the abbreviated proportionality review, the severity of the punishment. Deroulet's underlying offenses were forgery and attempted possession of a controlled substance. We have previously held that the possession or sale of narcotics is a grave or serious offense. People v. Cisneros, 855 P.2d 822, 830 (Colo.1998). Although the underlying convictions, standing alone, arguably do not rise to the level of grave or serious, we find that in combination with the serious nature of the burglary offense, the offenses in question are sufficiently grave and serious such that no inference of gross disproportionality is raised by imposition of the statutorily mandated thirty-six-year sentence. Thus, in reducing the sentence, the trial court failed to give the required deference to the General Assembly's determinations regarding sentencing. See generally Harmelin, 501 U.S. at 998, 111 S.Ct. 2680. Accordingly, the trial court's reduction of sentence, and the court of appeals' affirmation of that reduction, is reversed.

IV. Conclusion

Today we conclude, pursuant to the principles articulated and discussed in the companion case of Close v. People, 48 P.8d 528 (Colo.2002), that a defendant sentenced under the habitual criminal statute, as amended in 1998, is entitled to an abbreviated proportionality review of his sentence upon request. Accordingly, the trial court properly conducted such review in this case. However, we find that the trial court incorrectly concluded that the statutorily mandated thirty-six-year sentence was unconstitutionally disproportionate and thus erred in reducing Deroulet's sentence. Accordingly, we reverse the court of appeals' affirmance of the trial court's reduction of sentence, and order the thirty-six-year sentence to be imposed.

      . Specifically, we granted the People's petition for certiorari on the following two issues:
      (1) Whether the respondent is entitled to a proportionality review hearing under the new habitual criminal sentencing statute, 16-13-101, 6 C.R.S. (2001). .
      (2) Whether the trial court imposed and the court of appeals affirmed an illegal sentence, and whether the trial court erred in imposing a sentence less than that provided for in the habitual criminal sentencing statute, 16-13-101, 6 C.R.S. (2001).
      We also granted Deroulet's petition for certiorari on an evidentiary issue involving the trial court's decision to permit the testimony of two witnesses concerning an alleged drug transaction by Der-oulet before the events that gave rise to the convictions in this case. After further review, however, we have determined that we improvidently granted Deroulet's petition for certiorari on that issue and now deny it. >

      . Section 16-13-101 provides, in pertinent part:
      (1.5) Every person convicted in this state of any class 1, 2, 3, 4, or 5 felony who, within ten years of the date of the commission of the said offense, has been twice previously convicted upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony shall be adjudged an habitual criminal and shall be punished for the felony offense of which such person is convicted by confinement in a correctional facility for a term of three times the maximum of the presumptive range pursuant to section 18-1-105, CRS., for the class of felony of Wthh such person is convicted.

      . Prior to the 1993 amendments, the habitual criminal statute required the imposition of a life sentence. Under the amended version of the habitual criminal statute, the mandatory sentence is a multiple of the maximum sentence in the presumptive range, which results in a sentence to a term of years that varies from offender to offender. Compare § 16-13-101, 8A CRS. (1986) with§ 16-13-101, 8A C.R.S. (Supp.1993).

      . The court of appeals dlstmgulshed this case from the companion case, People v. Close, 22 P.3d 933 (Colo.Ct.App.2000), also issued today, stating that in Close, "unlike here, the defendant was not sentenced pursuant to the habitual criminal offender statutes." People v. Deroulet, 22 P.3d 939, 946 (Colo.Ct.App.2000). The court of appeals in this case also held that "to the extent Close can be read to preclude proportionality review altogether where a defendant has received a statutorily-mandated sentence, we decline to follow it." Id.

      . The Eighth Amendment provides that "[elxces-sive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIIL

      . - Thus, there is a distinction between proportionality reviews of sentences imposed under the habitual criminal statute and those that are imposed under the crime of violence statute, which we considered in the companion case of Close. Where the crime of violence statute requires the imposition of consecutive sentences, a reviewing court must conduct an abbreviated proportionality review of each separate sentence and cannot consider the total cumulative sentence. Under the habitual criminal statute at issue in this case, however, a court must consider the gravity or seriousness of the underlying crimes together with the triggering crime when conducting an abbreviated proportionality review.

      . The People do not contend that Deroulet is precluded from challenging the constitutionality of his sentence generally, but instead only contend that Deroulet is not entitled to the additional procedural requirements of an abbreviated or extended proportionality review. The People conclude that Deroulet's proper avenue for recourse is not a proportionality review. but is instead a claim that, his sentence was cruel and unusual under the Elghth Amendment a claim that utilizes a "shocks the conscience" standard.