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THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL BOERMA, )
) Court of Appeals No. A-4349
Appellant, ) Trial Court No. 4FA-S91-2114CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1269 - December 24, 1992]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: Paul Canarsky, Assistant Public
Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Karla Taylor-Welch, Assistant District
Attorney, Harry L. Davis, District Attorney,
Fairbanks, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Michael Boerma raped a six-year-old girl. He was
subsequently charged with, and pled no contest to, one count of
sexual abuse of a minor in the first degree. AS 11.41.434(a)(1).
The offense, an unclassified felony, subjected Boerma, a first
felony offender, to a maximum term of thirty years and a
presumptive term of eight years. AS 11.41.434(b); AS 12.55.125
(i)(1).
Superior Court Judge Mary E. Greene found two
aggravating factors and no mitigating factors applicable to
Boerma's case. After rejecting Boerma's request for referral to
the three-judge panel, see AS 12.55.165, Judge Greene sentenced
Boerma to a term of nine years, with one year suspended. Boerma
appeals, contending that Judge Greene erred in failing to refer
his case to the three-judge panel. We affirm.
At the time of this offense, Boerma was twenty-two
years of age, a member of the military, and married. He was a
high school graduate and had no prior criminal record. After
being arrested, Boerma acknowledged that he had also sexually
abused his five-year-old stepdaughter. Boerma further revealed
that, as a child, he had been sexually abused over a prolonged
period of time by an uncle. This history of abuse apparently
contributed to Boerma's involvement in the current offense.
Prior to being sentenced, Boerma presented evidence indicating
that situational stress relating to his wife's health may also
have played a role in his misconduct.
A psychiatric report prepared for sentencing purposes
indicates that Boerma has no history of aberrant behavior and
suffers from no major psychiatric disorder. According to the
report, Boerma recognizes the wrongfulness of his acts, expresses
genuine remorse, shows openness in discussing his misconduct, and
is highly motivated to engage in treatment. Based on these
traits, the report concludes that, although Boerma does not have
extraordinary potential for rehabilitation, "he clearly does
appear to have a much better prognosis than the majority of
sexual offenders." Prior to sentencing, Boerma sought to
have the sentencing court refer his case to the three-judge
sentencing panel for imposition of a mitigated sentence. Boerma
alleged that his unusually good prospects for rehabilitation
constituted an unspecified mitigating factor warranting referral
to the panel pursuant to Smith v. State, 711 P.2d 561 (Alaska
App. 1985). While acknowledging Boerma's favorable background
and his strong desire to change, and while expressing a
willingness to make allowances for these positive traits in
fashioning Boerma's overall sentence, Judge Greene concluded that
Boerma had failed to prove by clear and convincing evidence that
his ultimate chances for rehabilitation were exceptionally good.
The judge thus declined to refer Boerma's case to the three-judge
panel.
On appeal, Boerma asserts that Judge Greene's view of
the unspecified mitigating factor we recognized in Smith v. State
is unduly narrow. Emphasizing his good background, positive
attitude, and youthfulness, as well as the psychiatric report's
conclusion that he has "a much better prognosis than a majority
of sexual offenders," Boerma insists that Judge Greene should
have referred his case to the three-judge panel.
To prove the existence of the nonstatutory factor he
proposed, however, Boerma was required to do more than show that
his prospects for rehabilitation were above average for a sexual
offender. In Kirby v. State, 748 P.2d 757, 766 (Alaska App.
1988), we emphasized that referral to the three-judge panel based
on unusually favorable prospects for rehabilitation will be
justified only when the accused presents clear and convincing
proof that rehabilitation will actually occur. Under Kirby, the
defendant's proof must enable the sentencing court to find,
first, that it understands the problems that led the defendant to
engage in criminal misconduct, and second, that those problems
are either readily correctable or are unlikely to recur:
A person has an unusually good potential for
rehabilitation if the court is satisfied,
after reviewing the totality of the
circumstances, that he or she can adequately
be treated in the community and need not be
incarcerated for the full presumptive term in
order to prevent future criminal activity. .
. .
We recognize that no one can predict,
with certainty, whether an individual will or
will not commit future criminal activity.
The most the court can do is evaluate the
totality of the circumstances and attempt to
determine why the particular criminal
committed the crimes. The court predicts
rehabilitation, with any degree of
satisfaction, only when it is reasonably
satisfied that it knows why a particular
crime was committed. The court can be
satisfied that the conditions leading to the
criminal act will not reoccur, if the factors
which led the defendant to crime are
correctable or if the criminal act or acts
resulted from unusual environmental stresses
unlikely to ever reoccur.
Id.1
In the present case, Judge Greene's sentencing remarks
establish that the judge understood and scrupulously applied the
standard we articulated in Kirby. Although Judge Greene believed
that the information available to her provided insight into the
problems that led Boerma to commit his offense, the judge was
unable to predict with confidence that Boerma could readily
correct those problems or, alternatively, that the problems arose
solely from situational stresses and were therefore unlikely to
ever recur. Our review of the sentencing record convinces us
that Judge Greene's findings, and her consequent decision to
reject Boerma's proposed nonstatutory mitigating factor, are not
clearly erroneous. See Lepley v. State, 807 P.2d 1095, 1099-1100
(Alaska App. 1991) (upholding sentencing court's rejection of the
same proposed mitigating factors under highly similar
circumstances).
Having independently reviewed the entire sentencing
record, we further conclude that the sentence imposed below is
not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14
(Alaska 1974).
The sentence is AFFIRMED.
_______________________________
1. To the same effect, we recently said in Lepley v.
State, 807 P.2d 1095 (Alaska App. 1991):
[A] prediction of successful treatment and
non-recidivism should only be made when the
sentencing court is reasonably satisfied both
that it knows why a particular crime was
committed and that the conditions leading to
the criminal act will not recur -- either
because the factors that led the defendant to
commit the crime are readily correctable or
because the defendant's criminal conduct
resulted from unusual environmental stresses
unlikely ever to recur.
Id. at 1100.
