Yako William Collins v State of Alaska

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
YAKO WILLIAM COLLINS,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-12816
Trial Court No. 3PA-08-00803 CR
O P I N I O N
No. 2833 — October 2, 2026
Appeal from the Superior Court, Third Judicial District,
Palmer, Jonathan A. Woodman, Judge.
Appearances on remand from the supreme court: Kelly R.
Taylor, Assistant Public Defender, and Terrence Haas, Public
Defender, Anchorage, for the Appellant. Eric A. Ringsmuth,
Assistant Attorney General, Office of Criminal Appeals,
Anchorage, and Stephen J. Cox, Attorney General Designate,
Juneau, for the Appellee.
Before: Harbison, Judge, Bolger, Senior Supreme Court
Justice,* and Mannheimer, Senior Judge.*
Judge MANNHEIMER.
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Consti-
tution and Administrative Rule 23(a).

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In this appeal, we must decide whether the ex post facto clause of our state
constitution prohibits the retrospective application of certain changes that the legislature
made to the presumptive sentencing statutes in 2013. In other words, we must decide
whether these statutory changes can lawfully be applied to the sentencing of defendants
who committed their crimes before the legislature enacted these changes.
For the reasons explained here, we conclude that the ex post facto clause
prohibits retrospective application of the legislature’s 2013 changes to the presumptive
sentencing statutes. Because the defendant in this case committed his crime before the
legislature enacted these changes, he must be sentenced under the pre-existing law.
Underlying facts and procedural history of this case
In 2009, Yako William Collins was found guilty of committing a first-
degree sexual assault the previous year. 1 Because Collins was a first felony offender,
he faced a presumptive sentencing range of 20 to 30 years’ imprisonment for this
crime. 2 Collins asked the sentencing judge to exercise his authority under AS 12.55.165
and refer Collins’s case to the statewide three-judge sentencing panel, so that the three-
judge panel might exercise its authority to sentence Collins below the presumptive
range. 3
1 Collins v. State, 287 P.3d 791, 792 (Alaska App. 2012).
2 AS 12.55.125(i)(1)(A)(ii).
3 See AS 12.55.175, which establishes a statewide three-judge panel of the superior
court and gives this judicial body sole authority to sentence felony defendants outside the
limits of the presumptive sentencing range prescribed for their offense.

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Collins’s sentencing judge denied Collins’s request for a referral to the
three-judge panel, and Collins was sentenced within the presumptive range. (He
received a sentence of 25 years’ imprisonment with 5 years suspended.) 4
Collins appealed — challenging, among other things, the sentencing
judge’s denial of Collins’s request to refer his case to the three-judge panel.
(a) Our first decision in Collins’s case
In Collins v. State, 287 P.3d 791 (Alaska App. 2012) (Collins I), a majority
of this Court agreed with Collins that he should have another opportunity to pursue his
request to have his case referred to the three-judge sentencing panel.
This Court noted that when the legislature enacted significantly higher
presumptive sentencing ranges for sexual felonies in 2006, the legislature’s action was
prompted by two assumptions about sex offenders: that these offenders generally are
serial offenders, even though their prior offenses may not have been discovered and
prosecuted; and that these offenders generally have significantly worse prospects for
rehabilitation than other felony offenders. 5 In light of these legislative assumptions, this
Court held (by a two-to-one vote) that defendants who were subject to the higher post-
2006 presumptive sentencing ranges were entitled to have their cases referred to the
three-judge panel if they showed either (1) that they did not have a history of
unprosecuted sexual offenses, or (2) that they had prospects for rehabilitation which, in
other offenders, would be considered only “normal” or “good”. Collins I, 287 P.3d at
797. We therefore remanded Collins’s case to the superior court so that Collins could
renew his request to have his case referred to the three-judge panel. Ibid.
4 Collins I, 287 P.3d at 793.
5 Id. at 796–97.

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Judge Joel Bolger (who at that time was a member of this Court, before
his appointment to the supreme court) dissented from this Court’s decision. Judge
Bolger argued that the legislative history pertaining to the increased presumptive
sentencing ranges for sexual felonies did not support the two mitigating factors
identified by this Court. He further argued that these two mitigating factors were
inconsistent with the overall structure of the presumptive sentencing statutes. 6
(b) The Alaska legislature’s response to our decision
Early the next year, the Alaska legislature took action in response to our
decision in Collins I. In a bill that was ultimately enacted as SLA 2013, chapter 43, the
legislature declared that this Court had misconstrued the legislature’s purposes for
increasing the presumptive sentencing ranges for sexual felonies in 2006. The legis-
lature endorsed the position taken by Judge Bolger in his dissent, and the legislature
declared that it had never intended to create new or additional means for a defendant
convicted of a sexual felony to obtain referral to the three-judge sentencing panel. 7
As part of this same session law, the legislature amended AS 12.55.165
and 175 (the two statutes that govern referrals to the three-judge sentencing panel) so
that these statutes explicitly codified the position taken by Judge Bolger in his dissent
— barring defendants from seeking referrals to the three-judge sentencing panel on
either of the two bases identified by this Court in Collins I. 8
This new session law took effect on July 1, 2013, while the superior court
(pursuant to our mandate in Collins I) was reconsidering whether to refer Collins’s case
6 Id. at 797–99.
7 SLA 2013, ch. 43, § 1(b)-(c).
8 SLA 2013, ch. 43, §§ 22–23.

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to the three-judge sentencing panel. 9 Because of the legislature’s amendments to
AS 12.55.165 and 175, the superior court concluded that it no longer mattered whether
Collins could prove either of the two mitigating factors that this Court identified in
Collins I — because, even if Collins proved one or both of these mitigating factors, the
three-judge sentencing panel no longer had the authority to reduce Collins’s sentence
on these bases. The court therefore again denied Collins’s request for a referral to the
three-judge panel.
(c) Our second decision in Collins’s case
Once more, Collins appealed the superior court’s decision. Collins pointed
out that his crime was committed in 2008 — several years before the legislature enacted
the 2013 session law that prohibited the three-judge panel from reducing a sentence
based on the two mitigating factors that this Court identified in Collins I. Because of
this, Collins argued that it would violate the ex post facto clause if the amended
sentencing provisions of the 2013 session law were applied to him. He asserted that
when the superior court evaluated his request for referral to the three-judge panel, the
superior court was required to apply the law as it was stated in the Collins I majority
opinion — and that if the superior court did refer his case to the three-judge sentencing
panel, the three-judge panel would likewise be required to apply the law as it was stated
in the Collins I majority opinion, before the legislature amended the sentencing statutes
in 2013. 10
On its face, the resolution of Collins’s ex post facto claim might seem
straightforward and obvious: Collins committed his crime in 2008, and the legislature
did not amend the three-judge panel provisions of AS 12.55.165-175 until five years
9 SLA 2013, ch. 43, § 48.
10 See Collins v. State, 494 P.3d 60, 64 (Alaska App. 2021) (Collins II).

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later, in 2013. But there is a legal doctrine — the doctrine of “clarifying legislation” —
that makes this issue significantly more complicated.
The doctrine of clarifying legislation governs situations where a
controversy arises concerning the proper interpretation of a statute and, while the
controversy is being litigated in the courts (that is, before the judicial branch of
government has issued a binding interpretation of the statute), the legislature enacts new
legislation which purports merely to clarify the meaning of the pre-existing statute,
rather than to change the law in any fashion.
In these situations, if the courts are convinced that the new enactment is
indeed merely “clarifying” legislation, then the courts will treat the pre-existing statute
as if it had always meant what the later enactment declares its meaning to be.
This doctrine has special significance when, as in the present case, the
statute at issue is a penal statute. The ex post facto clause forbids the legislature from
enacting or amending a penal statute so as to retroactively criminalize, or retroactively
increase the penalty for, acts that have already been committed. But when a new
legislative enactment qualifies as “clarifying” legislation, the courts treat the pre-
existing version of the statute as having always meant what the clarifying enactment
now declares it to mean. Thus, there has been no change in the law. And because there
has been no change in the law, there is no issue of retroactivity when courts apply the
now-clarified statute to criminal cases that arose before the legislature enacted the
clarifying legislation.
See our fuller discussion of this doctrine in Collins v. State, 494 P.3d 60,
64–70 (Alaska App. 2021) (Collins II).
In Collins II, this Court concluded that the 2013 session law constituted
clarifying legislation — meaning that this 2013 session law did not change Alaska
sentencing law, but merely clarified the law that already existed. We therefore held that
Collins and other similarly situated offenders (offenders whose crimes were committed
after the legislature increased the presumptive terms for sexual felonies in 2006) were

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not entitled to seek referral of their cases to the three-judge sentencing panel based on
the two mitigating factors that we identified in our 2012 Collins opinion, even if their
crimes were committed before 2013. 11
(d) The Alaska Supreme Court’s decision in Collins’s case
However, our ruling in Collins II was not the end of this matter, because
the Alaska Supreme Court granted Collins’s petition to review our decision, and the
supreme court ultimately concluded that this Court had misapplied the doctrine of
clarifying legislation. Collins v. State, 568 P.3d 349, 352, 360–66 (Alaska 2025)
(Collins III).
The supreme court noted that, under our tripartite system of government,
the judicial branch has the ultimate authority to determine the proper interpretations of
statutes. 12 Because of this fundamental principle, a legislature cannot “clarify” a statute
after the appellate courts of that jurisdiction have issued a binding interpretation of the
statute. Rather, a legislature can only enact clarifying legislation while the meaning of
a statute remains unsettled or in doubt. Collins III, 568 P.3d at 356, 361. Thus, while
the legislature can enact clarifying legislation in anticipation of litigation surrounding a
statute, or in response to litigation that is already taking place in the lower courts, the
legislature cannot “clarify” the meaning of a statute in a way that conflicts with a
binding interpretation that has already been announced by the judicial branch. If the
legislature concludes that the judicial branch has reached the wrong conclusion about a
statute, the legislature must amend the statute — i.e., change the law. Ibid.
11 Collins II, 494 P.3d at 70.
12 Collins III, 568 P.3d at 359; Alaska Public Interest Research Group v. State, 167
P.3d 27, 43 (Alaska 2007); Marbury v. Madison, 5 U.S. 137, 177; 2 L.Ed. 60 (1803).

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When this Court decided Collins II, we assumed that this limitation on the
doctrine of clarifying legislation applied only when the statute in question had been
interpreted by our jurisdiction’s highest court — in other words, by the Alaska Supreme
Court. We therefore concluded that the Alaska legislature remained empowered to
clarify the presumptive sentencing statutes at issue in this case even though this Court
had interpreted those statutes in a different fashion.
But in Collins III, the Alaska Supreme Court declared that our handling
of this issue was mistaken:
[Alaska has only] one court of appeals whose
decisions, by statute, are authoritative statewide and binding
on all lower courts unless [they are] superseded on
discretionary review. … [If] the court of appeals publishes
its decision in a case, the statements of law in that case are
[binding] precedent … unless and until those statements of
law are superseded by a decision of the Alaska Supreme
Court. … [Thus, the court of appeals’s decision in] Collins I
[constituted a] final and binding judicial interpretation of the
2006 sentencing laws [when] the legislature enacted the
2013 legislation [purporting to clarify] that [2006] law’s
intent.
Collins III, 568 P.3d at 362.
The Alaska Supreme Court therefore held that the legislature’s 2013
amendments of AS 12.55.165 and 175 (the two statutes governing referrals to the three-
judge sentencing panel) could not have been clarifying legislation for ex post facto
purposes. Rather, the legislature’s revision of those two statutes in 2013 necessarily
changed the law — and, thus, any retroactive application of those changes would violate
the ex post facto clause if the changes were “substantive” (as that term is used in ex post
facto jurisprudence). Collins III, 568 P.3d at 365–66.

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The supreme court then directed this Court to determine whether the
legislature’s 2013 changes to AS 12.55.165-175 were “substantive” or merely
“procedural” for purposes of the ex post facto clause.
How we interpret the supreme court’s mandate in Collins III
Cases involving the ex post facto clause are sometimes a bit of an
analytical quagmire. Courts often assert that the ex post facto clause only bars the
retrospective application of substantive changes in the law, and that the clause allows
procedural changes to be applied retrospectively — but this is an imprecise and
potentially misleading generalization.
For example, in Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 186
L.Ed.2d 84 (2013), the Supreme Court addressed the issue of whether the ex post facto
clause prohibited retrospective application of newly increased sentencing ranges in the
federal sentencing guidelines. Even though the Supreme Court repeatedly referred to
the sentencing guideline laws as “procedural”, the Court concluded that the practical
effect of these increased guideline ranges was to create a substantial risk that defendants
would receive longer sentences for their crimes — and, for this reason, the ex post facto
clause prohibited retrospective application of these changes. Id., 569 U.S. at 543–45,
133 S.Ct. at 2084.
Similarly, in Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d
351 (1987), the Supreme Court held that the ex post facto clause prohibited
retrospective application of a change in the formula for calculating Florida’s
presumptive sentencing ranges for various offenses — sentencing ranges which Florida
judges were required to follow in the absence of clear and convincing reasons for a
departure. After the defendant in Miller committed his crime, the state legislature
increased the “primary offense points” assigned to that crime and, as a result, the lower
end of Miller’s presumptive sentencing range increased by 2 years. Rather than deciding

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whether this change was “substantive” or “procedural”, the Supreme Court focused on
the punitive effect of this change. The Court held that the revised sentencing formula
resulted in an increase in the “quantum of punishment” for Miller’s offense, and that
the ex post facto clause therefore prohibited retrospective application of the revised
sentencing formula. Id., 482 U.S. at 433–434, 107 S.Ct. at 2453.
As the Supreme Court explained in Collins v. Youngblood, 497 U.S. 37,
110 S.Ct. 2715, 111 L.Ed.2d 30 (1990):
We think the best way to make sense out of … the
cases is to say that by simply labeling a law “procedural,” a
legislature does not thereby immunize it from scrutiny under
the Ex Post Facto Clause. … Subtle ex post facto violations
are no more permissible than overt ones. In Beazell [v.
Ohio], we said that the constitutional prohibition is
addressed to laws, “whatever their form,” which make
innocent acts criminal, alter the nature of the offense, or
increase the punishment.
Youngblood, 497 U.S. at 46, 110 S. Ct. at 2721.
Or, as the Third Circuit has remarked, “A review of [the] leading cases
reveals that a challenged rule’s constitutionality [under the ex post facto clause] hinges
on its effect, not its form.” Holmes v. Christie, 14 F.4th 250, 264–65 (3rd Cir. 2021).
Moreover, the question of whether the retrospective application of a new
law violates the ex post facto clause — whether the new law impermissibly changes the
definitions of crimes or the laws of sentencing — is ultimately a matter of degree. Here
is what the Supreme Court said about this point in California Dept. of Corrections v.
Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995):
We have long held that the question of [whether]
legislative adjustments [to sentencing and post-sentencing
procedures] will be held to be of sufficient moment to
transgress the [ex post facto] prohibition must be a matter of
degree. … [What] we must determine [is] whether [the

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change in the law] produces a sufficient risk of increasing
the measure of punishment attached to the covered crimes.
Morales, 514 U.S. at 509, 115 S.Ct. at 1603 (emphasis in the original).
At this point, we must explain the relationship between federal ex post
facto jurisprudence and the Alaska Supreme Court’s exposition of our own state’s
ex post facto clause in Doe v. State, 189 P.3d 999 (Alaska 2008).
In Doe, our supreme court acknowledged that, in the past, it had construed
the Alaska ex post facto clause in conformity with court decisions construing the federal
ex post facto clause. But the supreme court explained that its past decisions did not
stand for the proposition that the Alaska clause should always be interpreted to mean
the same thing as the federal clause, or that litigation of analogous ex post facto cases
under the Alaska Constitution should always lead to the same results reached by the
federal courts.
The supreme court stated that it had followed analogous federal decisions
in the past because there was “no reason to do otherwise” — that is, because the
supreme court was convinced that our state’s ex post facto clause called for the same
analysis and result. 13 But the supreme court firmly rejected the notion that our state’s
ex post facto clause must uniformly be interpreted in line with the corresponding federal
clause. Rather, the court declared that it “[has] the authority and, when necessary, [the]
duty to construe the provisions of the Alaska Constitution to provide greater protections
than those arising out of the identical federal clauses.” 14
The Doe case dealt with a newly legislated requirement that sex offenders
register with the Department of Public Safety: the question was whether this mandatory
13 Doe, 189 P.3d at 1004–05.
14 Id. at 1005.

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registration represented an increased “punishment” for ex post facto purposes (meaning
that the registration requirement could not be applied retrospectively).
In Doe, the supreme court applied the same multi-factor “effects” test that
federal courts employ when deciding whether a change in the law represents an
increased punishment. But when the supreme court applied this test, it concluded that
sex offender registration was indeed a punishment for ex post facto purposes — the
opposite conclusion from the one that the United States Supreme Court had reached
five years earlier in the analogous case of Smith v. Doe, 538 U.S. 48, 123 S.Ct. 1140,
155 L.Ed.2d 164 (2003).
The supreme court explained that there was no legal incongruity in these
disparate results: How Alaska courts apply the multi-factor “effects” test when deciding
an ex post facto claim under the Alaska Constitution “is not governed by how the federal
courts independently apply the same test under the Federal Constitution, as long as [the
Alaska] interpretation is at least as protective as the federal interpretation.” 15
Returning, then, to the present case: The supreme court has asked us to
decide whether the legislature’s 2013 amendments to AS 12.55.165 and AS 12.55.175
are substantive or procedural for ex post facto purposes. The supreme court has the
authority to reject federal jurisprudence on this point and to return to the older
“substantive” versus “procedural” test that the United States Supreme Court abandoned
in Peugh, Miller, and Youngblood. But the wording of the supreme court’s decision in
Collins III gives no indication that the supreme court intended to depart from current
ex post facto jurisprudence — a jurisprudence which, as we have just explained, focuses
on the real-world effect of the legislature’s changes instead of trying to resolve whether
those changes should be labeled “substantive” or “procedural”.
15 Doe, 189 P.3d at 1006.

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We do, in fact, believe that the legislature’s 2013 amendments to the two
statutes are more properly categorized as “substantive” — because, in these amend-
ments, the legislature eliminated two of the foundational elements which, up until then,
defendants convicted of sexual felonies could plead and prove in order to obtain
sentencing relief from the three-judge panel.
But even if the 2013 amendments to AS 12.55.165 and 175 should be
characterized as “procedural”, the result in this case would be the same. Retrospective
application of the 2013 amendments violates the ex post facto clause because the
amendments create a substantial risk that a class of defendants (those convicted of
sexual felonies) will receive longer sentences than they would have received under the
pre-existing law — that is, under the law as it was stated by this Court in Collins I.
The legislature created this risk by restricting the grounds on which these defendants
can seek relief from the minimum sentences that are otherwise mandated by our
presumptive sentencing laws. We therefore hold that the 2013 amendments cannot be
applied retrospectively.
A closer look at how the 2013 session law amended AS 12.55.165 and
AS 12.55.175
There is a specified presumptive sentencing range for almost every felony
offense codified in Title 11 of the Alaska Statutes — a range that depends on the
category of offense, the defendant’s prior criminal record, and, in some instances,
special circumstances surrounding the crime.
Under AS 12.55.155(a), an individual sentencing judge has a limited
authority to impose a sentence below the applicable presumptive range if the defendant
proves one or more of the statutory mitigating factors listed in AS 12.55.155(d). But if
a defendant wants to rely on a non-statutory mitigating factor (that is, a mitigating factor
not listed in AS 12.55.155(d)), the defendant must ask to have their case referred to the
statewide three-judge sentencing panel.

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One of the two statutes at issue in this case, AS 12.55.165, prescribes the
method that a defendant must follow, and the foundational matters that a defendant must
prove, if the defendant wants their individual sentencing judge to refer their case to the
three-judge sentencing panel because of a non-statutory mitigating factor (such as the
two factors that this Court recognized in Collins I). And if the sentencing judge grants
the defendant’s request for referral to the three-judge panel, the second statute at issue
in this case, AS 12.55.175, defines the authority of the three-judge sentencing panel to
consider that non-statutory mitigating factor and to impose a sentence outside the
normally applicable sentencing range based on the non-statutory mitigator.
More specifically: When a defendant claims that one or more non-
statutory mitigating factors would justify the court in sentencing the defendant to a term
of imprisonment outside the range of sentences that would otherwise be available to the
individual sentencing judge, AS 12.55.165 requires the defendant to establish two
elements to the satisfaction of the individual sentencing judge. First, the defendant must
convince the sentencing judge that the facts of the case do, in fact, establish the
existence of one or more non-statutory mitigating factors. And second, the defendant
must convince the sentencing judge that “manifest injustice would result from failure
to consider [these non-statutory] mitigating factors”.
This “manifest injustice” element means that the defendant must convince
the sentencing judge that, because of the non-statutory mitigators, it would be
manifestly unjust to fail to make some adjustment, no matter how small, to the range of
sentences that would normally apply to the defendant (i.e., the range of sentences
available to an individual sentencing judge under the provisions of AS 12.55.155(a)). 16
If the individual sentencing judge concludes that the defendant has proved
both the “non-statutory mitigator” element and the “manifest injustice” element, then
16 Bossie v. State, 835 P.2d 1257, 1259 (Alaska App. 1992).

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AS 12.55.165 directs the sentencing judge to refer the defendant’s case to the three-
judge sentencing panel, and the proceedings become governed by AS 12.55.175.
Under subsection (b) of AS 12.55.175, the three-judge panel must
independently re-evaluate the sentencing judge’s conclusions on these two elements.
That is, the defendant must prove these same two elements to the three-judge panel:
that one or more non-statutory mitigating factors are present in the defendant’s case and
that, because of these non-statutory mitigators, it would be manifestly unjust to fail to
make some adjustment, no matter how small, to the range of sentences that would
otherwise apply to the defendant.
If the three-judge panel concludes that the defendant has established these
two elements, then the panel is authorized to impose a sentence outside the normal
restrictions of Alaska’s presumptive sentencing laws. AS 12.55.175(c), (e)-(g).
So what happened in 2013? The legislature passed a session law that
amended AS 12.55.165(c) so that now an individual sentencing judge is barred from
referring a case to the three-judge panel on any rationale that rests solely on one or both
of the non-statutory mitigating factors that this Court recognized in Collins I. 17
Similarly, another provision of the same session law amended
AS 12.55.175(f) so that the three-judge sentencing panel can no longer grant sentencing
relief to a defendant on any rationale that rests solely on one or both of the Collins non-
statutory mitigating factors. 18
17 SLA 2013, ch. 43, § 22.
18 SLA 2013, ch. 43, § 23.

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Why we conclude that the ex post facto clause prohibits retrospective
application of the 2013 amendments to AS 12.55.165 and AS 12.55.175
When Collins committed his offense, Alaska’s presumptive sentencing
law (as construed in Collins I) recognized two non-statutory mitigators that applied
specifically to defendants who had been convicted of a sexual felony. These defendants
could seek sentencing relief from the three-judge panel if they proved that they did not
have a history of unprosecuted sexual offenses or that they had prospects for rehabilita-
tion which, in other offenders, would be considered only “normal” or “good”.
Proof of either or both of these non-statutory mitigators did not guarantee
that the defendant would ultimately obtain sentencing relief from the three-judge panel
— because, even after proving one or both of these non-statutory mitigators, the
defendant still had to prove the second element required by AS 12.55.165 and 175: that,
because of the non-statutory mitigator(s), it would be manifestly unjust to fail to adjust
the normally applicable sentencing range by some amount, no matter how small.
But proof of either or both of the Collins non-statutory mitigators was
legally sufficient to establish the first required element of a request for sentencing relief,
and the defendant’s proof of this element then required the sentencing court to address
and resolve the remaining question under the statute: whether it would be manifestly
unjust to fail to adjust the presumptive sentencing range by some amount, even if small,
because of the non-statutory mitigating factor(s).
Because the 2013 session law abolished the two non-statutory mitigators
that this Court recognized in Collins I, the legislature reduced the range of non-statutory
mitigating factors that felony sexual offenders could rely on when asking the three-
judge panel for relief — i.e., when asking the three-judge panel to impose a lesser
sentence than the minimum sentence otherwise mandated by Alaska’s presumptive
sentencing statutes.

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For defendants like Collins (defendants for whom the two Collins factors
are the only non-statutory mitigating factors they can prove), the legislature’s action
eliminated any possibility that these defendants could obtain a lesser sentence from the
three-judge panel. The two Collins factors are now legally insufficient, either singly or
in combination, to support an individual judge’s decision to refer a defendant’s case to
the three-judge panel, and they are likewise legally insufficient to support the three-
judge panel’s decision to grant sentencing relief to a defendant.
In a trilogy of cases — Lindsey v. Washington, 19 Weaver v. Graham, 20
and Miller v. Florida 21 — the United States Supreme Court has held that the ex post
facto clause forbids retrospective application of legislation that effectively increases the
mandatory minimum sentence for an offense (even if, as a technical matter, the
minimum sentence remains unchanged).
The legislature’s mechanism for increasing the mandated minimum
sentence was different in all three cases. In Lindsey, the legislature effectively converted
the pre-existing maximum sentence into a new mandatory sentence, by eliminating a
sentencing judge’s discretion to impose a lesser sentence. 22 But in Weaver and Miller,
the legislature left the mandatory minimum sentence unchanged; instead, the legislature
changed the legal standards for deciding whether defendants would receive or serve the
minimum sentence.
In Weaver, the legislature reduced the amount of “gain time” that
prisoners earned (what we call “good time” in Alaska), thus effectively increasing the
minimum sentence by requiring all defendants to serve a larger portion of their
19 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937).
20 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).
21 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).
22 301 U.S. at 401, 57 S.Ct. at 799.

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sentences in prison (rather than on supervised parole). 23 And in Miller, the legislature
altered the formula for calculating the sentencing range for certain sexual offenses by
increasing the “primary offense points” assigned to those offenses — thereby putting
those offenses in a presumptively higher sentencing range and (all other things being
equal) increasing the minimum sentence that might be imposed for those offenses. 24
When the Supreme Court looked back on the Weaver and Miller decisions
in California v. Morales, the Supreme Court summarized those decisions as standing
for the rule that the ex post facto clause “forbids the States to enhance the measure of
punishment by altering the substantive ‘formula’ used to calculate the applicable
sentencing range.” Morales, 514 U.S. 499, 505; 115 S.Ct. 1597, 1601; 131 L.Ed.2d 588
(1995).
Using this same formulation of the rule, the Supreme Court denied relief
to the prisoner in Morales because the amended law at issue in that case “left unchanged
the substantive formula for securing any reductions to [the applicable] sentencing
range.” Morales, 514 U.S. at 507; 115 S. Ct. at 1602.
But in the case before us, the Alaska legislature did change the substantive
formula for securing a reduction of the sentencing ranges for sexual felonies. The
legislature did this by eliminating two of the pre-existing grounds for seeking a lesser
sentence from the three-judge sentencing panel.
We have no doubt that, under existing federal ex post facto jurisprudence,
retrospective application of this 2013 session law would be forbidden. But in any event,
we hold that retrospective application of the 2013 session law violates the Alaska
Constitution’s ex post facto clause.
23 450 U.S. at 26-27, 31-33; 101 S.Ct. at 962-963, 965-967.
24 482 U.S. at 433-434, 107 S.Ct. at 2453.

– 19 – 2833
Conclusion
For the reasons explained here, Collins is entitled to file a renewed
application for referral of his case to the three-judge sentencing panel — and, in this
renewed application, Collins is entitled to rely on the two non-statutory mitigating
factors that this Court recognized in Collins I.
We do not retain jurisdiction of this case.