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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4034
Appellant, ) Trial Court No. 3AN-S90-6108CR
)
v. ) O P I N I O N
)
DALE HULETZ, )
)
Appellee. ) [No. 1248 - September 18, 1992]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William H. Fuld, Judge.
Appearances: Stephanie Rhoades, Assistant
District Attorney, Edward E. McNally,
District Attorney, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for
Appellant.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Dale Huletz was convicted of fourth-degree assault
following a non-jury trial before District Court Judge William H.
Fuld. Judge Fuld suspended the imposition of Huletz's sentence
on condition that Huletz have no contact with his victim and no
similar offenses for a year; in addition, the judge ordered
Huletz to pay a fine of $250 and perform forty hours of community
service. The state appeals, contending that the sentence is too
lenient. We agree and disapprove the sentence.1
Huletz was convicted of assault for beating his
girlfriend, S.M., who lived with Huletz in his trailer in Anchor
age. Shortly before midnight on August 20, 1990, S.M. arrived
home from work. She was tired and had a class to attend the next
morning. Huletz was already at home; he was highly intoxicated
and argumentative. S.M. did not want to argue, so she went
directly to the trailer's bedroom and tried to go to sleep.
Huletz ordered her to get up; when she did not respond, he
flicked the light switch on and off repeatedly, then turned the
trailer's stereo system on at full volume. Finally, S.M. decided
to leave.
Huletz stood at the front door of the trailer. As S.M.
tried to walk out, Huletz struck her several times in the face
with his fists, then grabbed her by her hair and arms and threw
her back. S.M. started for the door once more. Huletz hit her
again with his fist. Fearing more violence, S.M. sat down on the
couch and made no further effort to leave. Huletz remained by
the door, blocking S.M.'s exit, from approximately 1:00 a.m.
until almost 6:00 a.m., when it was time for him to go to work.
After Huletz left, S.M. packed her belongings and moved
out. Suffering from bruises and swelling on her face, head, and
forearms, she went to the hospital emergency room for treatment.
At the time of the assault, Huletz was forty-one years
of age. Although Huletz had no history of assaultive behavior,
he had been convicted of driving while intoxicated in 1983 and of
leaving the scene of an accident in 1988. At trial, Huletz
denied S.M.'s charge of assault. He acknowledged striking S.M.
once, but claimed that he did so only to calm her down after she
had argued with him and become hysterical.
The trial court found Huletz guilty, concluding that
his version of the incident was not credible. However, given
that Huletz had no prior assault convictions and had apparently
never previously assaulted S.M., the court decided to suspend the
imposition of his sentence. Even though Huletz had two prior
misdemeanor convictions, the court stated that there was "no
reason for you to have the stigma of a conviction for the rest of
your life." Although the court recognized that Huletz's past and
current offenses indicated the likelihood of a longstanding
drinking problem, the court thought it unnecessary to require
Huletz to engage in any form of alcohol rehabilitation screening
or treatment; nor did the court deem it necessary to order any
type of counseling for Huletz's apparent difficulty in
controlling his anger. The court further concluded that no jail
time was necessary, since Huletz had served honorably in the
military, had been a productive member of society, and had hired
an attorney to represent him.
Based on these findings, the court suspended the
imposition of Huletz's sentence for one year on condition that he
refrain from any contact with the victim and commit no similar
offenses; the court also ordered Huletz to pay a fine of $250 and
to perform forty hours of community service. To accommodate
Huletz's work schedule, the court indicated that he could perform
his community service at any time within six months. The court
expressed the view that this disposition satisfied the sentencing
goals set out in State v. Chaney, 477 P.2d 441, 443-44 (Alaska
1970), particularly the goal of rehabilitation.
Having independently reviewed the entire sentencing
record, we conclude that the trial court's sentencing decision
was clearly mistaken. McClain v. State, 519 P.2d 811, 813-14
(Alaska 1974). Assault in the fourth degree is a class A
misdemeanor, and, as such, it is punishable by a maximum term of
one year in jail, a fine of $5,000, or both. AS 11.41.230; AS
12.55.135(a); AS 12.55.035(b)(3). Given these maximum penalty
provisions, it is apparent that the sentence in this case falls
near the bottom of the authorized range of sentences for fourth-
degree assault. Huletz received a suspended imposition of
sentence, with no jail time at all, only a minimal fine ($250),
and a modest period of community service (forty hours), which the
court allowed Huletz to perform at any time over a period of six
months (on average, slightly less than two hours per week).
Huletz will be entitled to have his conviction removed from his
record in one year if he avoids similar offenses and refrains
from any contact with S.M.
It seems self-evident that a sentence such as this --
one clearly falling at the bottom of the permissible range of
sentences for a given offense -- should be reserved for the most
mitigated of cases -- those near the bottom of the potential
range of seriousness for the offense. In the present case, the
sentencing court did not purport to find Huletz's offense to be
particularly mitigated, and we are convinced that the record
would not have supported such a finding had one been made.
Prior decisions of this court suggest that, in
determining whether a case is aggravated or mitigated, the
sentencing court must consider the totality of the circumstances
relating to the background and personal characteristics of the
offender, the seriousness of the conduct involved in the
commission of the offense, and the nature and extent of the
resulting harm. See, e.g., State v. Jackson, 776 P.2d 320, 326-
27 (Alaska App. 1989). In the present case, the evidence
concerning Huletz's background and personal characteristics
provides little basis for characterizing his case as particularly
mitigated.
On the one hand, Huletz's background is favorable in
some significant respects. As the sentencing court noted, Huletz
has served in the military; throughout his life he has been a
productive member of society. On the other hand, however, the
record contains significant negative information concerning
Huletz's background and personal characteristics. At forty-one
years of age, and with two prior misdemeanor convictions, Huletz
is hardly a youthful first offender. While neither of Huletz's
prior offenses involved assault, both were class A misdemeanors
-- the most serious form of non-felony offense. It is
significant that one of the prior offenses was alcohol related,
as is Huletz's current crime.
It is also significant that Huletz's other offense
resulted in a suspended imposition of sentence. A suspended
imposition of sentence is a unique disposition: by providing for
the eventual set-aside of a conviction, a suspended imposition of
sentence offers the offender an incentive for reform and an
opportunity to start anew with a clean slate. By its very
nature, however, a suspended imposition of sentence is primarily
meant to be a one-time opportunity for particularly deserving
first-offenders. It is a disposition ill-suited for repeated use
with a persistent offender.
At the time of sentencing in his current case, Huletz
had already received a suspended imposition of sentence, and, as
demonstrated by his renewed criminal misconduct, he failed to
take advantage of the unique opportunity for reform that it
represented. It is not at all clear why the sentencing court
deemed another opportunity appropriate.
Also relevant in this regard is Huletz's attitude
toward his current crime. Throughout his trial and sentencing,
Huletz remained doggedly unrepentant, clinging to a version of
events that the trial court deemed untrue -- a version that
shifted the blame for Huletz's conduct to his victim. At the
sentencing hearing, Huletz provided little indication that he
accepted responsibility for his conduct. While Huletz certainly
cannot be penalized for declining to admit his guilt, his failure
to acknowledge responsibility and his insistence on a version of
events that the trial court deemed untrue are additional factors
casting doubt on his prospects for reform.
We next consider the evidence in the record concerning
the seriousness of Huletz's conduct and the extent of harm he
caused his victim; like the evidence concerning Huletz's
background, this evidence provides little basis for a
particularly mitigated sentence. Huletz struck S.M. repeatedly
with his fists and virtually held her hostage in his trailer
overnight. As a result of the attack, S.M. suffered not only
significant emotional trauma, but also considerable physical
pain, which required her to go for treatment to the emergency
room. There she was found to have sustained multiple contusions
on her face, head, and arms.
The sentencing court seemed inclined to treat Huletz
leniently because it found that he did not assault S.M. with the
specific intent to injure her but, instead, simply "lashed out"
in anger at her, causing her injuries recklessly. Yet such
reckless conduct is squarely within the norm for assault in the
fourth degree. Indeed, the offense, as defined in AS 11.41.23
0(a)(1), consists of recklessly causing physical injury to
another person; while Huletz's conduct might have been
substantially more aggravated than the norm for fourth-degree
assault had he acted with the express purpose of inflicting
injury on S.M., the fact that he simply "lashed out" violently at
S.M. without specifically intending to cause her injuries does
not substantially mitigate the offense.
In short, although the nature of Huletz's actions and
the magnitude of S.M.'s injuries might not justify a finding that
Huletz's conduct was unusually aggravated for a fourth-degree
assault, neither would these factors justify a finding that his
conduct was particularly mitigated, that is, substantially less
serious than conduct typically involved in a case of fourth-
degree assault.
Because the present case could not reasonably be deemed
mitigated from the standpoint of Huletz's personal background,
the seriousness of his conduct, or the extent of the resulting
harm, we believe the sentencing court was clearly mistaken in
fashioning a sentence that was among the most lenient possible
for the offense.
We fully recognize that the sentencing court bears the
primary responsibility for determining the importance and
relative priority of the Chaney sentencing goals in each case.
State v. Nicholas, 477 P.2d 447, 448-49 (Alaska 1970). And we do
not fault the court in this case for emphasizing Huletz's
rehabilitation as the most important goal of sentencing. In our
view, however, the sentence imposed below fails to satisfy any of
the Chaney sentencing goals, including the goal of
rehabilitation.
Despite Huletz's apparently longstanding problem with
alcohol, his past conviction for another alcohol-related crime,
and his past failure to deal with this problem, the court
declined to require Huletz to submit to alcohol screening or to
participate in any form of substance-abuse therapy. And despite
the trouble Huletz evidently has in managing his anger, the court
similarly declined to require him to engage in anger-management
counseling. Considering that Huletz's current offense was
plainly alcohol related, that Huletz has insisted on a false
explanation of the offense, and that he has consistently shifted
blame for his conduct to his victim, the sentencing court's
failure to provide for any meaningful form of treatment aimed at
Huletz's rehabilitation seems inexplicable. We fail to see how
the sentence, as currently structured, serves the goal of
rehabilitation.
Neither does the sentence satisfy the Chaney goals of
deterrence and community condemnation.2 Huletz's sentences for
his past crimes have included informal probation and short
periods of time in jail, yet these measures have apparently
failed to deter his continued criminality. There is no reason to
suppose that the small fine and modest community service
requirement in his current sentence will deter him from future
misconduct, when sterner measures have already failed. Nor can
such a sentence reasonably be expected to deter other similarly
situated offenders.
By the same token, Huletz's sentence seems ill-suited
to express community condemnation for the type of violent crime
involved in this case. The state presents a cogent argument that
assaults involving domestic violence occur with alarming
frequency in our society, often having devastating consequences.3
When a court imposes a mitigated sentence in a domestic assault
case that is not particularly mitigated, it unduly depreciates
the seriousness of this type of criminal misconduct: such a
sentence inevitably creates the impression that domestic violence
is a form of assault which is somehow less worthy of societal
condemnation (and therefore somehow less serious) than other
forms of assault. The appearance that the justice system deems
domestic assaults to be trivial can only be exacerbated when
unusually lenient treatment is accorded to an offender with a
prior criminal record.
We by no means suggest that all instances of fourth-
degree assault involving domestic violence should result in jail
sentences; to the contrary, we recognize the need for, and
encourage the use of, creative alternatives to incarceration,
particularly in misdemeanor cases. Nor do we intimate that
fourth-degree assault cases involving domestic violence should be
targeted for categorically harsher treatment than other types of
fourth- degree assault. Our concern is precisely the opposite:
we seek only to assure that assaults involving domestic violence
be given parity -- the same serious consideration and treatment
that is typically given to assaults occurring outside the home.
The danger we perceive is that, as a category, fourth-
degree assaults involving domestic violence may receive treatment
that is more lenient than other types of fourth-degree assault.
The very fact that domestic assaults are so commonplace, and that
they typically occur in the privacy of the home -- usually
between people who are intimate or related -- invites an
unwarranted complacency toward this form of criminal violence.
Courts exposed day in and day out to such cases may find it
altogether too easy, in the long run, to adopt an attitude of
resigned toleration -- to regard domestic assault as conduct
which, though regrettable, is nevertheless understandable and
inevitable.
Yet this type of complacency must be vigorously
resisted. A violent and unprovoked attack against a spouse or
domestic partner is no more acceptable, and can be no more
tolerated, than a like attack against a stranger. In the present
case, as the sentencing court found, Huletz was angry, frustrated
and highly intoxicated; he "lashed out" violently. In the eyes
of the law, the fact that he selected a domestic partner rather
than a stranger as the target of his violence can provide no
occasion for leniency.
The sentence imposed by the district court is
DISAPPROVED.
_______________________________
1. When the state appeals a lawfully imposed sentence as
too lenient, this court may approve or disapprove the sentence,
but is not authorized to change it. See AS 12.55.120(b).
2. The remaining Chaney sentencing goal -- isolation of
the offender for the protection of society -- comes into play
primarily in cases involving offenders who have established
themselves to be particularly dangerous and incapable of
rehabilitation, thereby demonstrating the need for prolonged
incarceration in the interest of public safety. The state does
not argue that Huletz falls into this category of offender, and
the record would not support such a conclusion. The sentencing
court properly recognized that the present case did not call for
a sentence designed to isolate Huletz for purposes of public
safety.
3. The following passage from a recent report by Alaska's
Council on Domestic Violence and Sexual Assault is illustrative:
A woman is beaten every 18 seconds and
4,000 battered women are killed every year in
the United States. Nationwide, more than one
million abused women each year seek medical
assistance for injuries caused by battering.
In Alaska, 26% of adult women have been
physically abused by a spouse sometime during
their lives and most of the battered women
were abused at least once a month. It is
estimated that a minimum of 13,200 women
living in Alaska have required medical
treatment by a doctor or hospital for
injuries sustained by abuse at some time in
their life. In 1990, fifty percent of female
murder victims in Alaska were killed by their
husbands or boyfriends. More than half of
all homeless women are on the street because
they are fleeing domestic violence. There
are nearly three times as many animal
shelters in the United States as there are
battered women shelters.
Children raised in violent homes suffer
the effects of living in this environment and
are at higher risk for physical and sexual
abuse. Children raised in violent homes are
1500% more likely to be physically abused or
seriously neglected. Nearly fifty percent of
abusive husbands batter their wives when they
are pregnant, making these battered women
four times more likely to bear infants of low
birth weight. These women also have twice as
many miscarriages as non-battered women.
Council on Domestic Violence and Sexual Assault, Annual Report to
Governor Hickel and the Alaska Legislature at 2 (March 1992).
