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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JERRY K. COLLINS, )
) Court of Appeals No. A-3785
Appellant, ) Trial Court No. 3AN-S90-1468
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1154 - August 30, 1991]
________________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Rene J. Gonzalez, Judge.
Appearances: Matthew W. Claman, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Susan A.
Parkes, Assistant District Attorney, Edward E.
McNally, District Attorney, Anchorage, and
Charles E. Cole, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Jerry K. Collins pleaded no contest to second-degree
sexual assault, AS 11.41.420(a)(1), and fourth-degree assault,
AS 11.41.230(a)(3). Collins appeals the five-year term of
imprisonment he received for second-degree sexual assault. We
remand for further proceedings.
Second-degree sexual assault is a class B felony; the
presumptive term for a second felony offender is four years.
AS 12.55.125(d)(1). Collins was a first felony offender for
presumptive sentencing purposes. Under Austin v. State, 627 P.2d
657 (Alaska App. 1981), the superior court should not have
sentenced Collins to a term of imprisonment of four years or more
unless it found that his case was exceptional, based upon either
statutory aggravating factors listed in AS 12.55.155(c) or non-
statutory aggravating factors that would justify referring his
case to the three-judge sentencing panel under AS 12.55.165.
When Superior Court Judge Rene J. Gonzalez sentenced
Collins, he relied upon the fact that Collins had used a knife
during the sexual assault -- an aggravating factor under AS 12.55.
155(c)(4). Judge Gonzalez also relied on the fact that Collins
had committed four burglaries as a juvenile, offenses that would
have been felonies if Collins had been an adult -- an aggravating
factor under AS 12.55.155(c)(19). Judge Gonzalez believed that
these aggravating factors justified a sentence within the range of
four to six years' imprisonment, the benchmark range recognized in
State v. Jackson, 776 P.2d 320 (Alaska App. 1987), for aggravated
first-offense class B felonies. As noted above, Judge Gonzalez
sentenced Collins to five years' imprisonment.
At the time of sentencing, Collins made no objection to
Judge Gonzalez's reliance on the two aggravating factors. But on
appeal Collins complains that he received no advance notice of the
two factors. He relies upon the rule announced in Wylie v. State,
797 P.2d 651, 662 (Alaska App. 1990), that the prosecutor should
give a defendant advance notice if the prosecutor intends to rely
upon aggravating factors to argue for an enhanced sentence under
Austin. However, as Collins concedes in his brief, the
prosecuting attorney at Collins's sentencing did not ask the court
to impose a sentence of more than four years to serve.
Collins also relies upon Hartley v. State, 653 P.2d 1052
(Alaska App. 1982). In Hartley, this court ruled that, when a
sentencing judge sees that aggravating or mitigating factors apply
in a presumptive sentencing case, the judge must consider these
factors even if the parties have not recognized their applicabil
ity or argued their importance. 653 P.2d at 1055-56. However,
when aggravating or mitigating factors are raised by the court sua
sponte, the court must give the parties an opportunity to present
evidence for or against the proposed factors and to argue the
applicability and importance of the proposed factors. 653 P.2d at
1056.
Hartley was decided several years before Wylie, and this
court has never considered whether the Hartley rule requiring
judges to give advance notice of aggravating and mitigating
factors in presumptive sentencing cases should apply to non-
presumptive sentencing cases involving the Austin rule. Although
the goal of promoting uniformity of practice certainly argues in
favor of extending Hartley to these situations, there are
countervailing considerations. Prosecuting attorneys will, from
time to time, raise aggravating factors based upon facts not yet
in evidence, but a judge will have no knowledge of aggravating or
mitigating factors other than those present in the record already
available to both parties. Thus, it would be unusual for a judge
to raise an aggravating factor that was unforeseeable to the
defendant.
Collins's case provides an example of this point. The
state vigorously argues in its brief that Collins was not
surprised by the two aggravating factors. Collins was aware of
his own prior juvenile record; details of Collins's delinquency
adjudication were included in the pre-sentence report in this
case. And, when Collins entered his no contest plea, he expressly
stipulated that he had used a knife during the sexual assault.
The state's conclusion -- that Collins was neither surprised nor
prejudiced by Judge Gonzalez's reliance on the two aggravators --
also finds support in the fact that Collins did not make a
contemporaneous objection to the judge's use of the two
aggravating factors.
On the whole, however, we believe the better rule is to
extend a judge's obligations under Hartley to instances in which
the court wishes to consider statutory or non-statutory
aggravating factors for Austin purposes. The fact that the court
and the parties are relying on the same record of the proceedings
and the same pre-sentence report does not mean that there cannot
be surprises. The sentencing judge may read the record
differently from the parties, perceiving aggravating or mitigating
factors that the parties did not believe were raised by the facts.
Or the judge may differ with the parties in interpreting the legal
definition of an aggravating or mitigating factor. Both the
defendant and the government are entitled to notice that the judge
is considering previously unmentioned aggravating or mitigating
factors before the parties present their sentencing arguments.
Thus, we are remanding Collins's case to the superior
court for re-sentencing. At the renewed sentencing hearing, both
the state and Collins will have the opportunity to address the
issue of whether the aggravating factors in this case justify a
sentence of imprisonment exceeding Austin's normal four-year
ceiling. However, in the future we will strictly enforce the
contemporaneous objection rule: absent plain error, a defendant
will not be heard to complain on appeal that he or she lacked
advance notice of aggravating factors unless the issue has been
preserved by a timely objection in the trial court. 1
This case is REMANDED to the superior court for renewed
sentencing proceedings.
_______________________________
1 Collins raises an additional issue on appeal. At the
sentencing hearing, Judge Gonzalez noted that the pre-sentence
report showed Collins had been sexually assaulted as a child.
Judge Gonzalez concluded that this experience made Collins more
likely to commit sexual assault himself, and that Collins
therefore had poor prospects for rehabilitation and would require
both lengthy incarceration and sex-offender treatment. On appeal,
Collins challenges Judge Gonzalez's conclusion about the effect of
childhood sexual victimization on later adult behavior; he argues
that he should have had a chance to rebut Judge Gonzalez's assump
tion that a defendant's childhood sexual victimization increases
the defendant's likelihood of sexual problems and assaultive
behavior.
At the renewed sentencing proceedings in this case, Collins
should be given the opportunity to present evidence on the issue
of whether a defendant's experience of being sexually abused as a
child might provide insight into his sexually assaultive behavior
as an adult.
