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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT J. MILLS, )
) Court of Appeals No. A-4284
Appellant, ) Trial Court No. 3AN-S91-2590CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1257 - October 16, 1992]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Milton M. Souter, Judge.
Appearances: Gordon G. Goodman, Assistant
Public Advocate, and Brant G. McGee, Public
Advocate, Anchorage, for Appellant. Shannon
D. Hanley, 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.
BRYNER, Chief Judge.
Robert J. Mills entered a plea of no contest to, and
was convicted of, one count of first-degree robbery, a class A
felony. AS 11.41.500(a)(1), (b). As a first felony offender,
Mills was subject to a presumptive term of five years for his
crime. AS 12.55.125(c)(1). Superior Court Judge Milton Souter
found one aggravating factor and sentenced Mills to a term of
seven years with two years suspended. Mills appeals, contending
that the sentencing court erred in finding an aggravating factor
applicable to the case. We affirm.
On the morning of April 15, 1991, Mills committed three
armed robberies within a period of approximately one and one-half
hours. Each robbery involved one victim. Mills was captured
shortly after the last incident and was charged with a separate
count of first-degree robbery for each offense. Thereafter,
Mills entered a plea bargain with the state, agreeing to plead no
contest to a single robbery in return for dismissal of the other
counts. Under the terms of the agreement, however, Mills was to
admit that he had committed the two robberies alleged in the
dismissed counts, and the sentencing court would be allowed to
consider all three robberies in imposing Mills's sentence.
Prior to sentencing, the state alleged that Mills was
subject to the aggravating factor specified in AS
12.55.155(c)(9): that Mills "knew that the offense involved more
than one victim." The state acknowledged that the robbery to
which Mills had actually entered a plea of no contest involved
only one victim, but it argued that the aggravating factor
nevertheless applied, since Mills had agreed that the sentencing
court could consider all of the robberies in imposing Mills's
sentence.
Judge Souter adopted the state's position, finding, in
relevant part:
AS 12.55.155(c)(9) appears to me to be satis
fied clearly in spirit and I think it's cer
tainly possible to read the letter of it in
such a way that it applies here. The state
could have charged, and in fact originally
did, I believe, charge three separate robber
ies. The three separate robberies did indeed
occur in three different establishments. And
certainly and most clearly did involve three
different victims, three different human
victims, three different persons. And the
defendant certainly knew that at the time
these events unfolded. They've been lumped
into one charge and I don't see that the
situation conceptually is any different than
if one robbery had occurred and in the course
of it three different people had been menaced
sequentially instead of simultaneously.
At a later point, when asked to reconsider this ruling,
Judge Souter declined, making it clear that his finding of the
aggravating factor hinged on Mills's plea bargain, which, in
Judge Souter's view, contemplated that the three robberies would
in effect be considered as a single offense:
Well, I think that is a fair reading of
the agreement, and I'm going to -- I'm going
to adhere to my earlier decision. . . . I am
going to stick to the original decision be
cause I think it -- it makes the most sense.
Otherwise, frankly, it appears to me that I
-- that the original agreement that I could
consider these other two robberies for sen
tencing purposes practically would mean
nothing. And I emphasize the word, practical
ly. And I think the spirit of the aggravator
portion of the statute is satisfied here, if
not the exact letter.
Judge Souter relied on this factor to sentence Mills to an
adjusted presumptive term of seven years with two years
suspended.
On appeal, Mills claims that, since three separate
robberies occurred, each involving one victim, and since he was
actually convicted of only one of these robberies, which involved
only a single victim, Judge Souter necessarily erred in
concluding, for purposes of applying AS 12.55.155(c)(9), that his
offense involved more than one victim.
Mills bases his argument on a literal interpretation of
AS 12.55.155(c)(9), which focuses on the number of victims
involved in a given "offense." As Mills correctly observes, he
was, strictly speaking, convicted of only one discrete offense --
one specific act of first degree robbery. Judge Souter, however,
was not required to apply AS 12.55.155(c)(9) in the abstract. As
the passages quoted above plainly demonstrate, the judge's
finding of the disputed aggravating factor was based on his
interpretation of the plea agreement Mills reached with the
state. Judge Souter concluded that, as part of the negotiated
disposition, Mills had agreed to allow the sentencing court to
consider the three robberies he committed on April 15, 1991, as
being in effect a single criminal episode for sentencing
purposes.
Mills has not claimed, as a point on appeal, that Judge
Souter misinterpreted the plea agreement, and there is nothing in
the record indicating that Judge Souter's understanding of the
agreement was mistaken. Indeed, Mills has failed to include in
the appellate record a transcript of the change of plea hearing
or any other information bearing on the original intent of the
plea negotiations. Mills has likewise failed to claim that he
entered his plea in detrimental reliance on a promise that the
two dismissed robbery counts would be considered only for general
sentencing purposes, and not for purposes of determining aggra-
vating factors. Cf. Schnecker v. State, 739 P.2d 1310, 1312-13
(Alaska App. 1987); Fee v. State, 656 P.2d 1202, 1205 (Alaska
App. 1982).
Under these circumstances, we find no basis for
questioning Judge Souter's factual determination that Mills's
plea agreement was intended to allow the sentencing court to
consider all three of the robberies as a single criminal episode.
Of course, no plea bargain can empower the sentencing
court to ignore the law. More particularly, the parties to a
plea agreement have no authority to enter into stipulations that
would require the sentencing court to disregard mandatory aspects
of Alaska's presumptive sentencing statutes. See Kelly v. State,
663 P.2d 967 (Alaska App. 1983). And if the sentencing court's
finding of an aggravating factor in this case were based on a
stipulation that had no legal or factual foundation, that finding
would be problematic, despite the parties' willingness to
stipulate. See Hartley v. State, 653 P.2d 1052 (Alaska App.
1982).
Here, however, Mills's plea agreement authorized the
court, for purposes of imposing a sentence, to broaden its
consideration from the specific criminal act for which Mills was
convicted to the totality of Mills's criminal misconduct on the
morning of April 15, 1991. Because Mills's criminal acts were
closely related in time and circumstance -- involving similar
conduct occurring in a span of approximately one and one-half
hours -- the parties' agreement to treat these acts as a single
course of criminal conduct for sentencing purposes was plausible
as a factual matter, and, with regard to the disputed aggravating
factor, called upon the court to take an approach that was at
least arguably permissible as a matter of law. As Judge Souter
stated, in view of the plea agreement, the finding that Mills
knew his offense involved more than one victim was certainly
within the spirit, and possibly within the letter, of AS
12.55.155(c)(9). On these facts, and given Mills's plea
bargain, we conclude that the sentencing court did not err in
viewing the three robberies as a single criminal episode for
purposes of determining that Mills's offense involved more than
one victim. Mills has asserted no other ground for concluding
that his sentence is excessive. Having independently reviewed
the entire sentencing record, we cannot say that the sentence
imposed below was clearly mistaken. McClain v. State, 519 P.2d
811, 813-14 (Alaska 1974).
The sentence is AFFIRMED.
