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THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN LEE WILLIAMS, )
) Court of Appeals No. A-3434
Appellant, ) Trial Court No. 3AN-S88-8489CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, ) O N R E H E A R I N G
)
Appellee. ) [No. 1126 - April 19, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Thomas A. Ballantine, III,
Assistant Public Defender, and John B.
Salemi, Public Defender, Anchorage. Mary
Anne Henry, Acting District Attorney,
Anchorage, and Douglas B. Baily, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
This case comes to us on remand from the Alaska Supreme
Court with directions to reconsider our original opinion,
Williams v. State, 800 P.2d 955 (Alaska App. 1990), in light of
the supreme court's recent opinion in State v. Wentz, _____ P.2d
_____, Op. No. 3662 (Alaska, February 1, 1991). Although we find
that State v. Wentz requires clarification of our original
opinion, we adhere to the conclusion that Williams' composite
sentence was clearly mistaken and that his case must be remanded
for a total sentence that does not exceed forty years with ten
years suspended.
In State v. Wentz, the supreme court reviewed this
court's decision in Wentz v. State, 777 P.2d 213 (Alaska App.
1989). Wentz was a sentence appeal involving a sentence of
fifteen years with three years suspended for a first felony
offender convicted of assault in the first degree, a class A
felony. State v. Wentz, Op. No. 3662 at 4; Wentz v. State, 777
P.2d at 215. Our decision relied on several of our own prior
sentencing decisions establishing a rule which, with limited
exceptions, restricted sentences for first felony offenders
convicted of class A felonies to composite terms of no more than
ten years of unsuspended time. Wentz v. State, 777 P.2d at 216.
Applying this rule in Wentz, we concluded that an unsuspended
term of twelve years rather than ten years was excessive. Id.
In reversing this court's decision, the supreme court
rejected our reliance on the ten-year sentencing limit.
Specifically, the supreme court found that our judicially-created
sentencing limit encroached on the broad scope of authority
expressly vested by the legislature in the sentencing court.
Also, the supreme court found that our rigid application of the
ten-year limit contravened the "clearly mistaken" standard of
sentencing review adopted in McClain v. State, 519 P.2d 811, 813-
14 (Alaska 1974). See State v. Wentz, Op. No. 3662 at 10. In
this regard, the supreme court emphasized:
Whether a particular offense is
sufficiently serious to justify placing it in
the upper rather than lower end of the
sentencing range, however, cannot be
determined with mathematical certainty. Such
questions are not easily resolved by resort
to "bright line" rules or pronouncements
concerning the "correct" sentence to be
applied under varying factual circumstances.
For example, it cannot be stated
categorically that a felony assault committed
by an offender with a long string of prior
misdemeanor assaults is necessarily less
serious than a felony assault committed by an
offender with a single prior felony
conviction. Such questions must be answered
by reference to the particular facts of the
individual case, and are therefore matters
properly left to the sound discretion of the
sentencing judge.
Id. at 12.
The supreme court further emphasized that the
appropriate sentence must in each case be based upon a
consideration of all the sentencing criteria established in State
v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970), and enumerated in
AS 12.55.005. Id. at 6-7, 9. The court expressed the core of
its ruling in the following terms:
As we observed in Creer v. State, 600
P.2d 1095 (Alaska 1979), "[s]entencing must
be based on the facts of the particular
offense and the history of the individual
defendant." Id. at 1095-96. We believe that
the rigid approach applied by the court of
appeals in the instant case tends to undercut
this principle by artificially grouping
substan- tially different offenses and
offenders together in the lower end of the
authorized sentencing range.
Id. at 12-13.
Our decision in Williams differs significantly from the
decision that the supreme court reviewed and reversed in Wentz.
Most notably, in Williams we did not purport to formulate or
apply any hard and fast sentencing rule restricting the
appropriate sentence for a broad class of disparate offenders or
limiting the factors that could properly be taken into account in
deciding the relative seriousness of a particular case. Instead,
our opinion collected past sentencing decisions involving
offenders convicted of crimes generally similar to Williams' and
organized them into benchmark sentencing ranges.
Our primary purpose in so doing was to obtain some idea
of the length of time that would, in Williams' case, fall within
the "permissible range of reasonable sentences which a reviewing
court, after an independent review of the record, will not
modify." McClain, 519 P.2d at 813 (quoted in State v. Wentz, Op.
No. 3662 at 10-11). More generally, we hoped that our review of
case law and formulation of sentencing ranges would provide
assistance and guidance to sentencing courts faced with difficult
sentencing decisions in comparable cases.
Our benchmarks in Williams and other cases are not
intended to be inflexible rules confining the permissible range
of a sentence in a given case; rather, they are meant to act as
historically-based starting points for individualized analysis in
each case:
A basic precept of sentencing is that,
in each case, the defendant's sentence must
be based upon an individualized consideration
of the offender and the offense. To lend
structure and uniformity to this process, we
have occasionally established benchmark
sentences for particular types of crimes.
These benchmarks, however, have all been
predicated upon our review of past sentencing
decisions dealing with similarly situated
offenders. In establishing benchmarks, we
have attempted to synthesize historical
sentencing practices for specific types of
offenses in order to provide realistic,
experientially based sentencing norms for
guidance in future similar cases. Notably,
we have never attempted to create sentencing
benchmarks based on our abstract notions of
what a typical sentence for a given offense
ought to be.
McPherson v. State, 800 P.2d 928, 933 (Alaska App. 1990) (Bryner,
C.J., concurring and dissenting) (citations omitted).
If the benchmarks we referred to in originally deciding
the present case are susceptible of being interpreted in some
other way, perhaps the fault lies in a lack of clarity in our
opinion. Even when great care is taken to avoid the pitfalls of
over-generalization, it is inherently difficult to review and
organize prior case law without creating an appearance of
rigidity and inflexibility, that is, without generating the
impression that past experience must necessarily define and
delimit future.
To the extent that our use of benchmarks in this or
other cases is subject to misinterpretation, we reiterate that,
appropriately applied, benchmarks are meant only to provide a
framework for individualized analysis in each given case, based
upon the applicable sentencing criteria specified in Chaney and
AS 12.55.005. If the language of our original opinion in this
case, or any of our other cases, suggests that sentencing
benchmarks establish hard and fast limits, we disapprove that
language. We similarly disapprove any language in this or prior
cases suggesting that the benchmarks we have described can only
be deviated from when certain specific, limited exceptions are
established.1 We stress that any sound reason may be relied on
to differentiate one case from another. The legitimate role of
benchmarks is to promote careful consideration of whether actual
differences exist between a given case and prior, generally
similar cases, and to encourage courts to make clear their
reliance on those differences when they do exist.
We do not understand State v. Wentz to preclude or
discourage the use of benchmarks in this limited way; regardless
of any suggestion to the contrary in the language of our original
opinion, this is the only way in which we meant to use benchmarks
in this case.
Although State v. Wentz might be read as discouraging
even this limited use of benchmarks, we see little basis for
reading the supreme court's decision in such sweeping terms. In
fact, it would be difficult to carry out the basic legislative
goals embodied in Alaska's sentencing statutes without giving
careful, systematic attention to historical sentencing practices
for particular types of offenses.
In establishing our current sentencing laws, Alaska's
legislature departed from prior law by according fundamental
importance to the dual sentencing goals of promoting uniformity
and eliminating unjustified disparity. The legislature was
motivated by concern over sentencing studies indicating
significant disparity in felony sentences that could not be
explained by any "legally relevant sentencing criteria." See
DiPietro, The Development of Appellate Sentencing Law in Alaska,
7 Alaska L. Rev. 265, 278 (1990). See also Commentary on the
Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 148-
49, 1978 Senate Journal 1399.2
The legislature expressed its concern over disparity
with unmistakable clarity in AS 12.55.005, whose opening
paragraph declares:
The legislature finds that the elimination of
unjustified disparity in sentences and the
attainment of reasonable uniformity in
sentences can best be achieved through a
sentencing framework fixed by statute as
provided in this chapter.3
In the same statutory provision, the legislature went
on to list six factors for the sentencing court to consider in
each case. Factors (2) through (6) of AS 12.55.005 restate the
sentencing criteria previously articulated by the Alaska Supreme
Court in State v. Chaney, 477 P.2d at 443-44. See Commentary on
the Alaska Revised Criminal Code, Senate J. Supp. No. 47 at 148-
49, 1978 Senate Journal 1399. Paragraph (1) of the statute,
however, was added to the pre-existing Chaney criteria for the
express purpose of eliminating disparity and promoting
uniformity. Id. This factor requires the sentencing court, in
determining the appropriate sentence, to consider "the
seriousness of the defendant's present offense in relation to
other offenses . . . ." (Emphasis added.) Paragraph (1) of AS
12.55.005 thus expressly mandates that a court seeking to
determine an appropriate sentence in a given case make its
decision by considering the case before it in relationship to
other cases.
In our view, the periodic collection and synthesis of
generally similar cases into benchmark ranges is compatible with
the requirements of AS 12.55.005(1). Compliance with paragraph
(1) would be difficult, if not impossible, without a general
awareness of sentencing practices in similar cases. Benchmarks
promote compliance with the mandate of paragraph (1) by providing
a meaningful basis to assist in determining whether a given
sentence so far departs from the principle of reasonable
uniformity as to be clearly mistaken.
Likewise, benchmarks can be helpful in considering
whether a particular sentence meets the traditional Chaney
sentencing criteria, as expressed in AS 12.55.005(2)-(6). Past
sentencing decisions collected into benchmark sentences provide a
reliable indicator that the Chaney criteria have been fulfilled
for certain categories of cases by sentences within a certain
range. If the sentencing court, upon careful consideration of
all pertinent information, can find no significant distinction
between past cases and the case before it, the past cases will
furnish a reliable indicator that the Chaney criteria can be met
by the imposition of a similar sentence.
The need to impose an individualized sentence in each
case does not compel a total disregard of established sentencing
practices for similar categories of offenses and offenders. To
the contrary, while an intrinsic tension may exist between the
requirements of individualized sentencing and the need for
reasonable sentencing uniformity, in the long run this tension
can meaningfully be resolved only through awareness of existing
sentencing practices and consideration of the case at hand in
relation to other similar cases.
Again, we emphasize that, when properly used,
sentencing benchmarks should promote, and not preclude,
individualized consideration of all relevant information. At a
minimum, however, the principle of reasonable sentencing
uniformity requires a sentencing judge who decides that an
offender deserves a sentence which is significantly different
from sentences previously given to similarly situated offenders
to expressly find some legitimate basis for the difference --
some basis related to "legally relevant sentencing criteria."
Commentary on the Alaska Revised Criminal Code, Senate Journal
Supp. No. 47 at 148-49, 1978 Senate Journal 1399. That basis
should be spelled out on the sentencing record, so that the
defendant and a reviewing court can understand the reasons for
the disparity.
In the present case, the sentencing court does not
appear to have considered the seriousness of Williams' conduct in
relation to other offenses. Although the court gave general
consideration to the sentencing factors enumerated in paragraphs
(2) through (6) of AS 12.55.005, it did not consider or mention
the factor listed in paragraph (1). There is no indication in
the record that the court was aware of past sentencing practices
in kidnap/rape cases generally or that it realized that the
composite sentence it imposed significantly exceeded sentences
received by many prior similarly situated offenders -- offenders
whose backgrounds were generally similar to Williams' and who
were convicted of similar crimes for comparably serious conduct.
Because the sentencing court apparently did not
consider Williams' case in relation to other similar cases, it
made no effort to differentiate Williams' sentence from sentences
imposed in other kidnap/rape cases. The court did not find
Williams' conduct to be more serious than the conduct in cases of
offenders convicted of like crimes who received composite
sentences totaling thirty years or less; nor did the court find
Williams' background to be distinguishable from the background of
offenders in such cases.
Both before this court and the sentencing court, the
state has likewise failed to recognize the requirements of AS
12.55.005(1). Even in its petition for hearing to the supreme
court, the state does not seem to have acknowledged AS
12.55.005(1). Apart from arguing that the maximum penalty for
sexual abuse has recently been increased, the state makes no
attempt to explain how the significant disparity that appears to
exist between Williams' sentence and sentences received by prior
similarly situated offenders can be justified.
In our original opinion and now, we have independently
attempted to find some reason "related to legally relevant
sentencing criteria"4 to justify the seeming sentencing disparity
in this case. In almost all respects, both in terms of
background and conduct, Williams' case appears similar to cases
of offenders for whom composite terms of no more than thirty
years' of imprisonment have been approved; Williams' case also
seems markedly dissimilar to cases in which significantly higher
sentences have been affirmed.
The one potentially significant factual distinction
between this case and others -- Williams' choice of an eleven-
year-old child as a victim -- does not appear to justify the
significant disparity. As we noted in our original opinion, this
factor unquestionably rendered Williams' overall conduct more
serious than it would otherwise have been, but it is more than
offset by aggravating factors in the cases of various offenders
who have been sentenced to no more than thirty years --
aggravating factors that are not present in Williams' case.5
We have also carefully considered all of the evidence
in the sentencing record pertaining to Williams' background and
have found no plausible basis for distinguishing his case from
prior cases involving offenders who have received terms of thirty
years or less in kidnap/rape cases. In fact, as we indicated in
our original opinion, Williams' overall criminal history appears
to be less serious than that of offenders who previously received
thirty years or less for similar crimes. Williams, 800 P.2d at
960.
Finally, we have considered the state's argument that
the benchmark ranges we described for prior kidnap/rape cases may
be invalid because of recent changes in the law. The state rests
its argument on the fact that first-degree sexual assault and
first-degree sexual abuse are currently unclassified felonies
punishable by maximum terms of thirty years. In almost all the
prior kidnap/rape cases we have considered, the defendants were
convicted of sexual assault under prior law, which established a
maximum sentence of twenty years.
The state's argument is unpersuasive for two
independent reasons. First, the mere fact that the legislature
expanded the maximum possible sentence for sexual assault and
sexual abuse of a minor does not necessarily establish a
legislative intent to increase sentences for those offenses
across the board. See, e.g., Pears v. State, 698 P.2d 1198
(Alaska 1985). Second, and perhaps more significantly, in
Williams' case and in almost all the prior cases we relied on for
our benchmarks, the most serious offenses have been the
unclassified felonies of kidnapping, which have provided the
primary basis for the exceptionally lengthy composite sentences
considered in these cases. In contrast to the penalties for
sexual assault and sexual abuse of minors, the penalties for the
more serious crime of kidnapping have remained relatively stable
at all pertinent times.6 Given the constancy of the maximum
penalty for the more serious offense of kidnapping, there appears
to be little reason to believe that changes in penalties for the
lesser offenses of first-degree sexual assault and first-degree
sexual abuse of minors should significantly impact composite
sentences in kidnap/rape cases.
In short, our review of prior sentencing decisions
involving similar offenders convicted of similar misconduct
convinces us that an unsuspended term of thirty years in
Williams' case would satisfy all of the sentencing criteria
adopted in State v. Chaney and set out in paragraphs (2) through
(6) of AS 12.55.005. While these same criteria -- with the
possible exception of the goal of rehabilitation -- might as
readily be served by the composite forty-one year unsuspended
term imposed upon Williams by the superior court, the forty-one
year term would appear unjustified under AS 12.55.005(1). When
Williams' offense is considered in relation to other offenses,
the apparent disparity in Williams' sentence does not appear to
be based on any distinguishing factor "related to legitimate
goals of sentencing."7 The sentencing court did not explain or
justify the apparent sentencing disparity, and we are unable to
find any reasonable explanation in the sentencing record.
Having independently reconsidered the entire sentencing
record in light of all of the factors enumerated in AS 12.55.005
and in light of the supreme court's decision in State v. Wentz,
we conclude, as we did originally, that the sentence imposed
below is clearly mistaken. McClain v. State, 519 P.2d 811, 813-
14 (Alaska 1974). Accordingly, we adhere to our original
conclusion that the sentence must be REVERSED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. In particular, in our original opinion in this case, we
referred to the "dangerous offender" concept established by the
A.B.A. Standard for Criminal Justice. See Williams, 800 P.2d at
959 n.5 (citing III Standards for Criminal Justice 18-4.4(c)
(1982)). Reliance on the "dangerous offender" concept is
inappropriate in light of State v. Wentz, except to the extent
that the concept is considered as one of numerous potentially
relevant factors bearing on the issue of an offender's prospects
for rehabilitation and the level of danger that the offender
might pose in the future.
2. In fact, one study revealed the identity of sentencing
judges as the single most important factor influencing the length
of sentences. See Alaska Judicial Council, Alaska Felony
Sentencing Patterns: A Multivariate Statistical Analysis (1974-
1976), at iii, 40-46 (1977). This study specifically influenced
the Alaska legislature in formulating our current sentencing
statutes. See Commentary on the Alaska Revised Criminal Code,
Senate Journal Supp. No. 47 at 148-49, 1978 Senate Journal 1399.
3. The full text of AS 12.55.005 is as follows:
Declaration of purpose. The purpose of
this chapter is to provide the means for
determining the appropriate sentence to be
imposed upon conviction of an offense. The
legislature finds that the elimination of
unjustified disparity in sentences and the
attainment of reasonable uniformity in
sentences can best be achieved through a
sentencing framework fixed by statute as
provided in this chapter. In imposing
sentence, the court shall consider
(1) the seriousness of the defendant's
present offense in relation to other
offenses;
(2) the prior criminal history of the
defendant and the likelihood of
rehabilitation;
(3) the need to confine the defendant
to prevent further harm to the public;
(4) the circumstances of the offense
and the extent to which the offense harmed
the victim or endangered the public safety or
order;
(5) the effect of the sentence to be
imposed in deterring the defendant or other
members of society from future criminal
conduct; and
(6) the effect of the sentence to be
imposed as a community condemnation of the
criminal act and as a reaffirmation of
societal norms. ( 12 ch 166 SLA 1978)
4. Commentary on the Alaska Revised Criminal Code, Senate
Journal Supp. No. 47 at 148-49, 1978 Senate Journal 1399.
5. See Williams, 800 P.2d at 960. Because the legislature
has made both first-degree sexual assault and first-degree sexual
abuse of a minor unclassified felonies punishable by identical
penalties, sexual abuse of a minor is not per se more serious
than sexual assault on an adult. There is thus no basis for
concluding that the age of Williams' victim automatically
justifies a significantly higher range of sentence in his case.
Nor did the sentencing court in this case purport to make such a
finding. As we indicated in our original opinion, the overall
seriousness of Williams' conduct -- taking into account the age
and vulnerability of the victim -- appears comparable to the
seriousness of other cases involving offenders sentenced to
thirty years or less:
Williams' case appears similar to cases
such as Hintz, Tookak, and Patterson. One
significant distinction, however, is that
Williams' victim was an eleven-year-old
child, whereas the victims in Hintz, Tookak,
and Patterson were adults. The age and
relative vulnerability of Williams' victim is
to some extent offset, however, in Hintz,
Tookak, and Patterson by aggravating
circumstances that are absent here. For
instance, the offenders in Hintz, Tookak, and
Patterson were armed with handguns. All
three cases involved abductions that
apparently lasted considerably longer than in
the present case. In Hintz and Tookak, the
victims were released under life-threatening
circumstances. Moreover, the defendants in
Patterson and Tookak had prior criminal
histories considerably more extensive than
Williams'.
Id. (citing Hintz v. State, 627 P.2d 207 (Alaska 1981); Patterson
v. State, 689 P.2d 146 (Alaska App. 1984); Tookak v. State, 648
P.2d 1018 (Alaska App. 1982)).
In considering the overall seriousness of Williams'
conduct in relation to other offenders, we have considered it
relevant that the superior court found only one statutory
aggravating factor in this case -- that Williams was on probation
at the time of the offense. Notably, although the sentencing
court found Williams' overall conduct to be extremely serious,
the court did not find, and the state did not allege, that his
conduct was among the most serious within the definition of the
offenses for which Williams was convicted. See AS
12.55.155(c)(10). Nor did the court find, or the state allege,
that Williams' victim was particularly vulnerable by virtue of
extreme youth or for any other reason. See AS 12.55.155(c)(5).
6. Prior to enactment of the Alaska Revised Criminal Code,
kidnapping was punishable by a maximum term of life imprisonment,
whereas the offense is currently punishable by a maximum of
ninety-nine years. Compare former AS 11.15.260 with AS
11.41.300(c) and AS 12.55.125(b). In the limited context
presented here, we find no significant differences between the
maximum permissible terms under former and current law.
7. Commentary on the Alaska Revised Criminal Code, Senate
Journal Supp. No. 47 at 148-49, 1978 Senate Journal 1399.
