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AK Court of Appeals makes ruling in Juneau criminal deportation case

Posted: September 30, 2013 - 9:14pm  |  Updated: October 1, 2013 - 12:01am
Defendant Jose Perez, right, talks with Public Defender David Seid during a hearing in front of a three-judge panel on cocaine and assault charges in April 2011.  Michael Penn | Juneau Empire File
Michael Penn | Juneau Empire File
Defendant Jose Perez, right, talks with Public Defender David Seid during a hearing in front of a three-judge panel on cocaine and assault charges in April 2011.

The Alaska Court of Appeals has ruled that a three-judge panel has the authority to modify a Juneau felon’s prison sentence so he can avoid deportation.

In a ruling Friday, the court rejected the state’s argument that federal law prohibits state courts from doing so. It remanded the case of Jose Manuel Perez back down to the three-judge panel for further consideration.

Perez, a 38-year-old immigrant from the Dominican Republic, has been awaiting sentencing since his trial in Juneau in July 2011. The ruling would allow his sentence to be below the presumptive sentencing range, if the three-judge panel finds that deportation is an unduly harsh consequence of his conviction. Perez’s attorney David Seid argues that it is, given that his client has lived lawfully in the U.S. for 30 years and has virtually no ties to his home country.

It is not known when the panel will reconvene to hand down Perez’s sentence.

Perez was convicted in 2011 of felony interfering with official proceedings and misdemeanor fourth-degree assault in connection to a jailhouse assault. The jury concluded he beat up a police informant who was to testify against him in a drug case as they were both being held at Lemon Creek Correctional Center. The jury deadlocked, however, on the underlying drug charge, and Perez pled guilty to felony fourth-degree drug misconduct for possessing heroin rather than stand trial again.

Perez is facing a one to three year presumptive sentence for the interference charge, zero to two years for the drug charge and up for a year for the misdemeanor assault charge. He is also facing an imposition of up to 437 days of suspended jail time for revocation of his probation in an earlier misdemeanor case.

Perez can avoid deportation on the drug offense — it’s not an aggravated felony under federal law, and he’s eligible to apply for discretionary relief. That’s not an option for the interference charge, though, since it is an aggravated felony. If he receives a sentence of one year or more on that charge, he will be deported.

Perez’s attorney earlier asked for the panel to consider if deportation qualifies as a non-statutory sentencing mitigator in the case. The mitigator would allow Perez to serve one day under than the presumptive sentencing range for the interfering charge, 364 days rather than 365 days, and would keep him from being deported.

The Alaska Court of Appeals consolidated Perez’s case with another similar case out of Nome. With respect to that case, State of Alaska vs. Michael Silvera, the high court affirmed the three judge panel’s decision to impose a sentence below the presumptive range based on the “harsh collateral consequence” of deportation.

Judge Marjorie Allard, who penned the opinion, wrote that Alaska courts are not prohibited by federal law from imposing a sentence aimed at influencing the defendant’s risk of deportation. Allard noted Congress expressly reserved a role for state courts in determining when a crime is considered an aggravated felony under federal law, and that Congress expected state courts would have a role in determining who qualifies as an aggravated felon.

“We reject the State’s claim that federal law prohibits the three-judge sentencing panel from considering the harsh collateral consequences of deportation and, if manifest injustice would otherwise result, from imposing a sentence below the presumptive range based on that consideration,” the judge wrote.

The three-judge panel previously suggested that it would adopt the sentencing recommendation put forth by Juneau Superior Court Judge Philip Pallenberg for Perez: 364 days for the interference charge and a total composite sentence of three years and 71 days. The judges said in a hearing last August that it would be “manifestly unjust” to subject Perez to deportation when it was possible to construct a composite sentence that fully satisfied the sentencing criteria.

The panel ruled the opposite when it first heard the case in April 2012, but they hinted that was primarily due to constraints within the plea agreement.

Pallenberg originally agreed to refer the case up the panel at the request of the defense attorney because only the three-judge panel can find the existence of non-statutory mitigators, or mitigators that are not listed in state statutes. Alaska statutes do not list deportation, or collateral consequences, as a sentencing mitigator. The panel is comprised of three superior court level judges, plus two alternate judges, who are appointed by the chief justice.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

Editor's Note: The Empire incorrectly reported that the Alaska Supreme Court ruled on this case. It was the Alaska Court of Appeals.

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