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THE COURT OF APPEALS OF THE STATE OF ALASKA
BRIAN ROSS, )
) Court of Appeals No. A-3567
Appellant, ) Trial Court No. 2NO-S89-229CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1124 - April 12, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Second Judicial District, Nome,
Michael I. Jeffery, Judge.
Appearances: Scott Jay Sidell, Anchorage,
for Appellant. John R. Vacek, District
Attorney, Nome, and Douglas B. Baily,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Brian Ross was convicted after pleading no contest to
an information charging him with two counts of second-degree
murder. Upon entry of the plea, the state dismissed the original
indictment, which charged Ross with two counts of first-degree
murder. Superior Court Judge Michael I. Jeffery sentenced Ross
to eighty years in prison on each count, with forty years
concurrent and forty years consecutive. Ross's composite term is
thus 120 years. Ross appeals, contending that the sentence is
excessive.
Ross was convicted for the murder of two Nome
residents, Doris Kaloke and her sixteen-year-old daughter,
Michelle. The murders were particularly brutal. The police
found Ross' victims in the bedroom of their apartment; Ross had
stabbed each more than thirty times. He had used two separate
knives. The tip of one knife broke off and remained embedded in
the skull of one victim. When the knife broke, Ross apparently
went to the kitchen, secured a second knife, and returned to the
bedroom to continue his attack. Ross stabbed his second victim
with sufficient force to drive the blade of his knife completely
through her skull. Evidence at the crime scene suggested that
Michelle Kaloke may have been sexually assaulted. Upon police
questioning, Ross claimed that he had little recollection of the
episode because he had experienced an alcoholic blackout. Judge
Jeffery, however, found this explanation implausible.
In deciding to impose sentences totalling 120 years,
Judge Jeffery recognized that under Page v. State, 657 P.2d 850,
855 (Alaska App. 1983), the benchmark sentence for second-degree
murder is twenty to thirty years. Judge Jeffery also took into
account Ross' relative youth (nineteen years old when he
committed the offenses) and his lack of an adult criminal record.
However, based on the aggravated nature of the crimes, Judge
Jeffery concluded that Ross was a worst offender and deserved an
exceptionally severe sentence.
Judge Jeffery's finding that Ross is a worst offender
is not clearly erroneous. A worst-offender finding may properly
be based exclusively on the nature of the defendant's conduct.
State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975). Here, the
fact that Ross killed two innocent victims in their own
apartment, the utter lack of a rational explanation for his acts,
and the profoundly bizarre and aberrant brutality of the killings
are all factors that support the conclusion that Ross is a worst
offender. Moreover, Ross' troubled background, his serious and
longstanding pattern of substance abuse, and his negative
psychological evaluation reinforce the conclusion that he is an
extremely dangerous offender. Ross appears to have little or no
insight into the seriousness of his problems. There is nothing
in the record to indicate that any particular form of treatment
could assure successful rehabilitation. See, e.g., Nukapigak v.
State, 663 P.2d 943, 945 (Alaska 1983).
Given the circumstances of the offense, the sentencing
court's worst-offender finding by itself warranted the imposition
of a composite term totalling ninety-nine years, the maximum for
a single count of second-degree murder. See Ahwinona v. State,
598 P.2d 73, 77 (Alaska 1979); Faulkenberry v. State, 649 P.2d
951, 957 (Alaska App. 1982); Nelson v. State, 619 P.2d 480, 481
(Alaska App. 1980). Before imposing consecutive sentences
totalling more than ninety-nine years, however, the court was
required to make an express finding that a term exceeding the
maximum for a single count was actually necessary to protect the
public from future dangerous acts by Ross. See Mutschler v.
State, 560 P.2d 377, 380-81 (Alaska 1977); Thompson v. State, 768
P.2d 127, 133-34 (Alaska App. 1989). Judge Jeffery did not make
the requisite finding.
The Alaska Supreme Court and this court have
occasionally dispensed with the requirement of an express finding
of necessity, when the sentencing record has unequivocally
established that the defendant posed an extreme danger of future
misconduct and lacked potential for rehabilitation. See, e.g.,
Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Collins v. State,
778 P.2d 1171, 1177-78 (Alaska App. 1989) (Singleton, J.,
concurring). In our view, however, the sentencing record in this
case is not sufficiently clear-cut to warrant dispensing with an
express finding. Judge Jeffery's sentencing remarks suggest that
the judge may have imposed consecutive sentences of more than
ninety-nine years for purposes other than to assure Ross'
continued isolation.1
We thus find that a remand is necessary. On remand,
the sentencing court should make express findings on the issue of
whether consecutive sentences totalling 120 years are actually
necessary for the purpose of protecting the public. In the event
the court decides that the sentence originally imposed is not
actually necessary to protect the public, it should modify the
sentence accordingly.
The case is REMANDED for further proceedings.
_______________________________
1. In his sentencing remarks, Judge Jeffery expressed the
view that a finding of necessity to protect the public was not
required to justify consecutive sentences exceeding the ninety-
nine-year maximum for a single count of murder. In reaching this
conclusion, Judge Jeffery relied on Jones v. State, 744 P.2d 410,
411-12 (Alaska App. 1987). Jones, however, did not abrogate the
requirement of an express finding of necessity for consecutive
sentences exceeding the maximum for the single most serious
count. This requirement was formulated by the Alaska Supreme
Court in Cleary v. State, 548 P.2d 952, 956 (Alaska 1976), and
Mutschler, 560 P.2d at 380-81. With the advent of Alaska's
revised criminal code, this court broadened the Cleary/Mutschler
rule to apply in the context of presumptive sentencing. We held
in Lacquement v. State, 644 P.2d 856, 862 (Alaska App. 1982),
that, in cases involving multiple convictions for related
offenses, the sentencing court was required to make an express
finding of need to protect the public before imposing consecutive
terms exceeding the presumptive term for the single most serious
offense. Subsequently, in Jones, 744 P.2d at 411, we
reconsidered the Lacquement rule and found it unduly rigid. We
concluded that consecutive sentences exceeding the highest
applicable presumptive term could be justified if the record
established, and the sentencing court found, a good reason for
imposing such sentences. Id.; see also Farmer v. State, 746 P.2d
1300, 1301-02 (Alaska App. 1987). Jones did not purport to
modify the Cleary/Mutschler rule, which we have continued to
apply. See Thompson, 768 P.2d at 133-34; Collins, 778 P.2d at
1175-76.
