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THE COURT OF APPEALS OF THE STATE OF ALASKA
WOODROW A. ALLAIN, )
)
Appellant, ) Court of Appeals No. A-2944
) Trial Court No. 3AN-S88-2568CR
v. )
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 1130 - May 10, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karl S. Johnstone, Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. W. H.
Hawley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, 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.
Woodrow A. Allain appeals after being convicted of two
counts of sexual abuse of a minor in the second degree, claiming
that the two counts should merge into a single conviction. He
also challenges two special conditions of probation and contends
that his composite sentence is excessive. We affirm.
On February 10, 1988, Allain babysat nine-year-old
C.M.S. C.M.S. went to sleep on a sofa bed while watching
television. She awoke to find Allain lying next to her, with his
hand inside her panties touching her genital area. After
withdrawing his hand, Allain got on top of C.M.S. With his
clothing on, Allain moved up and down on C.M.S., rubbing his
genitals against hers.
As a result of his sexual contact with C.M.S., the
state charged Allain with two counts of sexual abuse of a minor
in the second degree: one count for touching C.M.S. with his
hand and one count for rubbing his genital area against hers.
After a jury convicted Allain of both counts, Superior Court
Judge Karl S. Johnstone sentenced Allain to consecutive terms of
three years. As to Count I, which involved Allain's touching
C.M.S. with his hand, Judge Johnstone suspended two years of
imprisonment; as to Count II, the genital touching, the judge
suspended all three years. Allain's composite sentence was thus
six years with five years suspended. As special conditions of
probation, Judge Johnstone ordered Allain, among other things, to
abstain from consuming alcoholic beverages and to avoid
unsupervised contact with children under sixteen years of age.
On appeal, Allain first contends that the two counts
for which he was convicted should merge into a single count for
purposes of judgment and sentencing. Allain argues that separate
convictions and sentences are impermissible because the two
counts involve conduct that was closely related, arising from a
single criminal episode of sexual contact with the same victim.
The state concedes error, acknowledging that only a single
conviction should properly have been entered here. We find the
state's concession to be factually supported and to have legal
foundation. See Newsome v. State, 782 P.2d 689, 691-92 (Alaska
App. 1989).
We next consider the appropriate remedy. We conclude
that, under the circumstances of this case, judgment should be
vacated as to Count I; that count should be deemed to merge with
Count II, which should be allowed to remain in effect. This
seems appropriate because the sexual touching dealt with in Count
I appears to have been preliminary in nature and to have
culminated in the contact that was the subject of Count II.
A more difficult issue is whether resentencing should
be allowed on Count II in light of the merger. The state
maintains that Allain's case should be remanded for resentencing
on Count II and that the sentencing court should be authorized to
impose a new sentence that does not exceed the composite term of
six years with five years suspended originally imposed as to
Counts I and II. In response, Allain insists that a remand for
resentencing would be barred by double jeopardy and due process.
We find the state's position meritorious and Allain's
constitutional claims unpersuasive. As a matter of federal
constitutional law, it appears clear that resentencing on Count
II is barred neither by double jeopardy nor by the due process
prohibition against vindictiveness. See, e.g., Pennsylvania v.
Goldhammer, 474 U.S. 28 (1985); United States v. Pimienta-
Redondo, 874 F.2d 9 (1st Cir. 1989) (en banc).
It is conceivable that the more stringent protections
of Alaska's double jeopardy and due process clauses might afford
Allain shelter against resentencing in some circumstances, even
though resentencing would not be barred by the United States
Constitution. Under the narrow circumstances of the present
case, however, we conclude that the Alaska Constitution does not
bar resentencing. Two factors are pivotal to our decision.
First, the dismissal of Count I in this case results
from its merger with Count II and does not in any way implicate
the legitimacy of the jury's factual determination that Allain
was guilty of the conduct originally charged in Count I. Given
the merger of Counts I and II, Count II now comprehends the
totality of the conduct for which Allain was originally
sentenced. Because the merger of Counts I and II was precisely
the relief that Allain sought in bringing this appeal, he cannot
be heard to complain that double jeopardy precludes the
imposition of a new sentence that takes into account the expanded
scope of the conduct now included in that count.
Second, in the present case, Judge Johnstone made it
abundantly clear at the original sentencing hearing that he
viewed Allain's convictions as essentially a single episode of
criminal misconduct and that, while he elected to use consecutive
sentences, his aim was to fashion a composite term appropriate
for the totality of Allain's conduct. Given Judge Johnstone's
remarks, it is apparent that the judge's selection of a partially
suspended term on Count I and a completely suspended term on
Count II was wholly fortuitous. It is further evident that Judge
Johnstone deemed the total term of six years with five years
suspended to be appropriate as a total sentence, regardless of
whether that sentence was implemented by means of consecutive or
concurrent sentences.
This is significant in terms of Allain's vindictiveness
claim. Because Judge Johnstone made his views clear on the
contemporaneous record of the original sentencing hearing, no
appearance of vindictiveness could reasonably arise should the
judge, on remand, resentence Allain on Count II to the same term
he originally received on Counts I and II:
[S]ince the basic conduct underlying [Count
II] is the same [as that originally included
in Counts I and II], and since that basic
conduct determined the sentence, it is
virtually inconceivable that the similarity
of old and new sentences could reflect
"vindictiveness."
Pimienta-Redondo, 874 F.2d at 17 (Breyer, J., concurring).
We conclude that, on remand, the judgment must be
vacated as to Count I. The superior court may, however,
resentence Allain to a term that does not exceed the composite
sentence originally imposed in this case.
Allain separately challenges two special conditions of
probation. He focuses initially on the condition requiring him
to abstain from consuming alcoholic beverages. Allain argues
that his misconduct in this case was not shown to have been
alcohol related. For this reason, he contends that the
prohibition against consuming alcoholic beverages is not
reasonably related to the goal of rehabilitation. See Roman v.
State, 570 P.2d 1235, 1240 (Alaska 1977); Edison v. State, 709
P.2d 510, 512 (Alaska App. 1985).
The record, however, establishes that Allain is a
mildly retarded twenty-one-year-old man who suffers from
immaturity and has difficulty controlling anger. From the
circumstances surrounding the offense in this case, it is also
fair to infer that Allain has problems controlling impulsive
behavior. These problems appear to be substantial, and there is
no reason to suppose that Allain will have an easy task
addressing them as a probationer.
While the amount of alcohol that Allain consumes does
not appear to be excessive, and while the record discloses no
direct link between Allain's drinking and his current offense,
Allain has, by his own account, been drinking regularly since he
was thirteen years old. Allain's presentence report recommended
that, as a special condition of probation, Allain be required to
abstain from consuming alcoholic beverages. Although Allain's
counsel objected to other recommendations in the presentence
report, he did not object to this proposed special condition.
Under the circumstances, Judge Johnstone could
reasonably have concluded that Allain's chances for successfully
addressing his problems with immaturity, anger, and impulsiveness
could be enhanced by eliminating the potential distraction and
complication that might be posed if Allain developed an incipient
problem with alcohol abuse. The judge did not abuse his
discretion in determining that the challenged special condition
was reasonably related to the goal of rehabilitation.1
Allain next challenges the special condition of
probation requiring him to avoid unsupervised contact with minors
who are under sixteen years of age. The record, however, fully
supports the appropriateness of this special condition.
Moreover, Allain's trial counsel affirmatively approved of the
presentence report's recommendation that the no-contact provision
be included as a special condition of probation. We find no
error.
Finally, Allain argues that his total sentence is
excessive. He focuses primarily on the five-year suspended
portion of the sentence. The sentence, however, must be viewed
in its entirety; while suspended time must be considered, it is
not the equivalent of unsuspended time. The total sentence of
six years with five years suspended is relatively lenient for a
class B felony, even when Allain's status as a youthful first
offender is considered. See State v. Jackson, 776 P.2d 320
(Alaska App. 1989). In imposing Allain's sentence, Judge
Johnstone carefully considered all applicable sentencing
criteria. Having independently reviewed the entire sentencing
record, we cannot say that the sentence imposed below is clearly
mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment is VACATED as to Count I. This case is
REMANDED for resentencing on Count II.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Contrary to Allain's contention in his opening brief,
we find nothing in the record to support the conclusion that, in
requiring Allain to obtain appropriate counseling for alcohol
abuse, Judge Johnstone contemplated that he might be forced to
undergo residential treatment. Accordingly, we find no violation
of Hester v. State, 777 P.2d 217 (Alaska App. 1989).
