NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
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Courts, 303 K Street, Anchorage, Alaska
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THE COURT OF APPEALS OF THE STATE OF ALASKA
CARL R. T. KEYSER, JR., )
) Court of Appeals No. A-4468
Appellant, ) Trial Court No. 1PE-S89-10CR
)
v. ) O
P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1304 - July 30, 1993]
________________________________)
Appeal from the Superior Court, First
Judicial District, Petersberg, Thomas E.
Schulz, Judge.
Appearances: Mary P. Treiber, Assistant
Public Defender, Ketchikan, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Adrienne P. Bachman, Assistant
District Attorney, Ketchikan, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
In 1989, Carl R. T. Keyser, Jr., entered a plea of no
contest to a charge of first-degree theft in violation of AS
11.46.120 (theft by deception of property valued at $25,000 or
more). The offense is a class B felony, carrying a maximum term
of ten years. AS 11.46.120(b); AS 12.55.125(d). Presumptive
terms for second and subsequent felony offenders are four and six
years.
AS 12.55.125(d)(1)-(2). Keyser was a first felony offender and
was not subject to a presumptive term. In accordance with a plea
agreement between Keyser and the state, Superior Court Judge
Thomas E. Schulz suspended the imposition of Keyser's sentence on
condition that Keyser serve ninety days in jail, pay restitution
of $17,354.67, and complete a seven-year period of probation.
Keyser completed his jail term and was released on
probation in May of 1989. In February of 1991, the state peti-
tioned to revoke Keyser's probation. Over the next year the
state filed several supplemental petitions. Ultimately, Keyser
admitted the allegations of an amended and consolidated petition
dated February 18, 1992. Following an evidentiary hearing, Judge
Schulz revoked probation, rescinded the suspended imposition of
sentence, and sentenced Keyser to a maximum term of ten years.
Keyser appeals, contending that the sentence is excessive. We
reverse.
KEYSER'S ORIGINAL OFFENSE
In 1988, Keyser, relying on a fraudulent employment
application, secured employment as the city manager for the
village of Kake at an annual salary of $44,000. After Keyser had
spent approximately two months in the position, Alaska State
Troopers arrested him on a warrant from Kentucky, where he had
been charged with theft by deception for obtaining $697 in
connection with his fraudulent application for a position as city
manager for the town of Pikesville. Keyser's arrest on the
Kentucky warrant led to the discovery that his application for
the city manager position in Kake contained numerous false
statements concerning his background and qualifications. By that
time, Keyser had received a total of about $28,680 in moving
costs, living expenses, salary, and other benefits from the
village of Kake. As a result, he was charged with first-degree
theft.
THE ORIGINAL PROCEEDINGS
1. The Plea Agreement
Keyser eventually entered into a plea bargain with the
state, pursuant to which he would receive a seven-year suspended
imposition of sentence in return for his plea of no contest.
Under the terms of the bargain, the court would order Kaiser to
pay restitution to the village of Kake and to the city of
Pikesville, Kentucky, to write letters of apology to both cities,
and to serve a seven-year period of probation. The parties
apparently contemplated that, after sentencing, Keyser would move
to Seattle, Washington, where he would begin his probationary
term. According to the agreement, Keyser would be prohibited
from securing any government employment with the exception of
regular military service while on probation.1
2. The Original Presentence Report
Before the superior court finally accepted Keyser's
negotiated no contest plea, it ordered a presentence report
prepared. The report indicated that at the time of this offense,
Keyser was thirty-four years old and was married, with four
children. He had no prior felony convictions but had been
convicted in 1987 of a misdemeanor perjury charge in Florida, for
which he received one year of probation. In addition, in 1978,
Keyser was convicted in Utah on a misdemeanor charge of issuing
bad checks; he received a suspended imposition of sentence, and
the conviction was later expunged from his record. The report
revealed nothing about the circumstances surrounding the Florida
or Utah misdemeanor convictions.
According to the presentence report, Keyser had served
in the army for five years, receiving an honorable discharge as a
first lieutenant in 1978. After that, Keyser's employment
history consisted of sporadic jobs in various small towns,
initially as a police officer or as police chief, but more
recently as a city manager or administrator. Keyser's
presentence report questioned his qualifications for such work,
however, noting that, although Keyser claimed to have made
substantial progress toward a college degree in public
administration at a correspondence school in Illinois, the school
was apparently unaccredited and had recently been closed, so
Keyser's claim could not be verified; in addition, although
Keyser had evidently participated in several months of police
training in California, he had never been certified to work as a
police officer.
Based on his investigation, the author of the
presentence report recommended against the court's acceptance of
the plea agreement. Although noting that Keyser "is an
intelligent, personable individual" and that "[h]e has been
described as a sincere family man, who cares about his wife and
children, and values their presence in his life," the author
emphasized the serious nature of Keyser's offense, pointing out
that Keyser was not a youthful offender, that he had been
misrepresenting his qualifications to employers for at least
three years, and that, by his own admission, he needed
psychological counseling to address his problems. Given these
factors, the author of the report believed a suspended imposition
of sentence to be inappropriate and found no reason to treat
Keyser differently than other offenders convicted of first-degree
theft.
More specifically, the report's author sounded the
following, prophetic warning against a suspended imposition of
sentence that would restrict Keyser from government jobs and
place him on probation in Seattle:
Mr. Keyser is going to have to obtain
employment and pay back a sizeable amount of
restitution. He is also responsible for the
financial support of his wife and four young
daughters. I do not believe it is
appropriate to require Mr. Keyser to avoid
all government jobs, but do believe it is
appropriate to assure that he is both
qualified and able to perform the duties of
whatever job he does obtain. That can be
done while he is on supervised probation by
requiring him to report to his probation
officer for approval of jobs before he
accepts them. Mr. Keyser has a track record
of being "found out" in communities where he
has talked himself into employment that he is
not qualified for, and then leaving town,
sometimes travelling clear across the
country. Without measures being taken to
correct that behavior, Mr. Keyser is likely
to reoffend. However, by requiring him to
remain in a community where he can be
supervised by a probation officer, confer
with his probation officer prior to accepting
any employment position, and requiring that
he participate in psychological counseling
and furthering his employment eligibility
through education and training, the
predicament that Mr. Keyser finds himself in
at this time need never reoccur.
The [Criminal] Rule 11 [plea]
[a]greement requires that Mr. Keyser not be
employed in any government jobs, and that he
be supervised for seven years. This
probation officer prefers that those
conditions not be applied for the following
reasons: The biggest employer in the State of
Alaska is the government . . . ; if Mr.
Keyser cannot be employed by a government
agency, his best chances for employment are
in Seattle; the probation officer monitors a
probationer's employment; the State of
Washington supervises probationers for one
(1) year, and in many cases only require[s]
them to report by mail; I do not believe Mr.
Keyser can maintain his "good intentions" for
seven years unless closely supervised, which
he won't be in Seattle.
3. The Original Sentencing Hearing
Despite this note of caution, Judge Schulz accepted the
plea agreement and suspended the imposition of Keyser's sentence
in accordance with its terms. Upon completing his ninety-day
jail term, Keyser moved to the Seattle area; supervision of his
probation was transferred to the state of Washington, which
placed Keyser on a mail-in reporting system.
KEYSER'S CONDUCT ON PROBATION
Over the ensuing two years, Keyser used fraudulent job
applications and false documents -- including forged military
discharge papers and social security cards issued under various
aliases -- to secure a number of jobs managing apartment
complexes in the Seattle area. Within a short time of beginning
each job, Keyser was fired due to incompetence or mismanagement.
In one instance, he misappropriated approximately $2,500 from an
employer's trust account before being fired. He repaid the money
only after being threatened with prosecution. In other
instances, he submitted W-4 forms with false information to
employers -- evidently in violation of federal law.
During the same period, Keyser submitted several false
loan applications to Seattle area banks to obtain cash or to
finance various purchases, later defaulting on the loans. Keyser
negotiated, or attempted to negotiate, numerous bad checks on
bank accounts that either had insufficient funds or had been
closed. He also purchased various items with invalid credit
cards. Through all of his fraudulent transactions, Keyser secured
property or funds amounting to at least $30,000 in value.
As time went on, Keyser's false claims appeared to
become increasingly grandiose, almost gratuitously so. For
example, prior to his sentencing in Alaska, Keyser reported to
the author of his presentence report that he had served in the
Army for five years and had been honorably discharged as a first
lieutenant (a claim that was later found untrue). In a resume
Keyser submitted for an apartment managers' position in the
Seattle area after being released on probation, however, he
claimed to have graduated from West Point and to have completed
fifteen years of military service before retiring from the Army
in 1988 as a major; he further claimed that his last military
assignment had involved the management of twenty-two hundred
military rental units at Fort Benning, Georgia. In an even later
application to another prospective employer, Keyser made similar
false claims, but gave himself a promotion to the rank of
lieutenant colonel.
Keyser's probation violations came to a head in early
1991. In January of 1991, Keyser became angry with a neighbor.
Keyser armed himself with a pistol, entered the neighbor's apart
ment, and threatened to shoot the neighbor and two other persons
who were present. Washington police arrested Keyser on felony
assault charges as a result of the incident. The arrest
evidently prompted Washington probation officials to look more
closely into Keyser's situation; as they did so, they
progressively became aware of the scope of his fraudulent
misdealing. This launched the filing of a series of probation
revocation petitions in Alaska, which, in turn, led to Keyser's
extradition from Washington. The Washington charges were
eventually dropped in light of Keyser's impending extradition to
Alaska.
PROBATION REVOCATION PROCEEDINGS
1. The Probation Revocation Charges
Once returned to Alaska, Keyser admitted the
allegations of a petition charging him with violating the
conditions of his probation by possessing a concealable firearm,
passing several thousand dollars in bad checks, filling out false
applications for employment and false W-4 forms, and using false
information to obtain loans from various lending institutions.
He also admitted failing to pay any restitution to the village of
Kake during his two years of probation.
2. The Updated Presentence Report
In an updated presentence report prepared for Keyser's
disposition hearing, his probation officer expressed the view
that Keyser could no longer be considered a viable candidate for
probation and appeared to be incorrigible. The updated report
revealed additional information about Keyser's background that
had not been known at the time of his original sentencing
hearing.
For example, the updated report established that Keyser
had actually served only a year or two in the military and had
been discharged at the rank of private. Moreover, whereas the
original presentence report indicated that Keyser's pattern of
fraudulent employment applications for city manager positions
dated back approximately three years, the updated report
established a far lengthier series of deceptive applications
relating to his earlier police jobs.
Specifically, the updated report attached (without
objection from Keyser) an article published in a Seattle
newspaper after Keyser's arrest in Washington. The article
reported that, between 1980 and 1987, Keyser had relied on false
information to obtain a series of thirteen jobs as a police
officer or chief in various small towns across the country. In
all instances, Keyser's misrepresentations were discovered soon
after he was hired, and he was either fired or forced to resign.
According to the article, most of the communities that employed
Keyser were willing to give him favorable recommendations for
other jobs in return for his agreement to leave quietly.
The exception was Oak Hill, Florida, where Keyser
served as police chief for four months in 1987 -- his last police
job. When Keyser's misrepresentations were discovered in Oak
Hill, a misdemeanor perjury charge was filed against him; he was
convicted, was given a one-year period of probation, and was
forbidden from seeking any further employment in law enforcement.
This evidently prompted Keyser to refocus his efforts on city
manager positions thereafter.
In addition to revealing the foregoing new information,
the updated presentence report also attached a psychological
evaluation recently prepared by Dr. Lynn Caldwell of Ketchikan.
Caldwell reported that Keyser appeared to be "cooperative and
well motivated" and that he was of above average intelligence.
Based on a test of Keyser's personality profile, Caldwell found
"no indication . . . of psychotic process or poor reality
testing," but did discover indications of "lifelong adjustment
problems related to personality and behavior disorders."
Caldwell noted, specifically, that individuals with
test results similar to Keyser's tended to be profoundly
suspicious of others, to be unable to accept responsibility, and
to transfer blame as a defense; such individuals are also
characteristically short-tempered and impulsive, self-centered
and demanding, and use somatic complaints to gain control and
sympathy. Caldwell further observed that Keyser appeared to be
mildly depressed.
According to Caldwell, these traits indicated that
Keyser's problems were "not likely to respond to insight oriented
individual psychotherapy." Caldwell believed that, instead,
Keyser was "most likely to benefit from close supervision and
long term direct monitoring of his behavior and activities in
progressively diminishing direct management." In Caldwell's
view, "[v]ocational training for specific occupational skills may
be helpful in achieving" the goals of such treatment.
3. The Disposition Hearing
At Keyser's disposition hearing, the state presented
several witnesses to confirm that Keyser's actual conduct
conformed to the personality traits addressed in Dr. Caldwell's
psychological evaluation. Based on this evidence, the state
argued that Keyser was a "pathological liar" and a danger to the
community. The state urged the court to impose a sentence
exceeding the four-year presumptive term for a second, class B
felony offender, the term that would ordinarily be the
appropriate sentencing limit for a first-offense class B felony
like Keyser's. See Austin v. State, 627 P.2d 657, 657-58 (Alaska
App. 1981). The state further argued that, in light of Keyser's
conduct on probation, the court should consider finding him to be
a worst offender -- a finding that would justify the imposition
of a maximum, ten-year term. See State v. Wortham, 537 P.2d
1117, 1120 (Alaska 1975).
After considering the evidence, Judge Schulz agreed
with the state's argument. Although Judge Schulz expressly found
that the offense for which Keyser stood convicted "doesn't
measure up to a worst offense," the judge concluded that
Keyser's "record on probation leaves the court with no choice . .
. but to find that Mr. Keyser is a worst offender."
Addressing the sentencing criteria articulated in State
v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970), Judge Schulz
concluded that Keyser's potential for rehabilitation to be as
"near to zero as anything I've ever seen." Finding it
unreasonable to believe that a probation officer could supervise
Keyser adequately, Judge Schulz also expressed the view that a
lengthy sentence was necessary to protect the public and that
such a sentence would further the goal of community condemnation.
Finally, Judge Schulz emphasized that specific deterrence was a
particularly important goal in theft cases, stating "the sentence
that is imposed today has to speak loudly and clearly on specific
deterrence because Mr. Keyser has goofed up so badly on his
probation". Accordingly, Judge Schulz sentenced Keyser to the
maximum term of ten years.
DISCUSSION
To resolve the dispute in this case, we must
independently review the sentencing record and determine whether
the sentence imposed is clearly mistaken:
Although the primary responsibility for
sentencing rests with the trial court, the
scope of appellate review requires that we
make our own examination of the record,
focusing on the need for protecting the
public, the nature of the crime, and the
defendant's character. This independent
examination of the justice of a particular
sentence is necessary if the review process
is to function effectively. Our standard of
review on a sentencing appeal is to determine
whether the trial court's imposition of
sentence was "clearly mistaken."
Benefield v. State, 559 P.2d 91, 97 (Alaska 1977) (footnotes
omitted).
We will find a sentence clearly mistaken only when our
independent review of the record convinces us that it is beyond
"a permissible range of reasonableness." McClain v. State, 519
P.2d 811, 813 (Alaska 1974). We must determine this range of
reasonableness by examining "the particular facts of the
individual case in light of the total range of sentences
authorized by the legislature for the particular offense." State
v. Wentz, 805 P. 2d 962, 965 (Alaska 1991) (original emphasis
omitted). Both parties recognize that a maximum sentence will
ordinarily be justified when the record provides a "`foundation
for characterizing the defendant as the worst type of offender.'"
State v. Wortham, 537 P.2d at 1120 (quoting Galaktionoff v.
State, 486 P.2d 919, 924 (Alaska 1971)). Keyser, however,
challenges the sentencing court's worst offender finding and
argues that his sentence is disproportionately long. In
response, the state insists that the sentencing record supports
Judge Schulz' worst offender finding and argues that, as a worst
offender, Keyser deserves the maximum sentence.
To qualify as a "worst offender . . . the defendant
must be the worst type of offender `within the group of persons
committing the offense in question.'" Hintz v. State, 627 P.2d
207, 210 (Alaska 1981) (quoting Wilson v. State, 582 P.2d 154,
157 n.3 (Alaska 1978)). Whether Keyser was properly found a worst
offender depends on the specific circumstances surrounding his
crime, as well as on Keyser's character and background. Id. Of
specific relevance in the consideration of Keyser's character and
prior background are factors such as prior criminal history, age,
military records, employment history, drug or alcohol addiction,
presentence report evaluations and predictions, and the possible
presence of antisocial tendencies which pose a clear risk to the
public. Id.; see also Moore v. State, 597 P.2d 975, 976 n.4
(Alaska 1979); State v. Wortham, 537 P.2d at 1120.
Here, the sentencing court expressly found that the
conduct for which Keyser was convicted was not a particularly
aggravated case of first-degree theft by deception. This finding
is supported by the record. The amount of money involved in
Keyser's theft -- $28,680 -- was only slightly more than the
minimum amount necessary for purposes of the first-degree theft
statute -- $25,000. Nor was there anything unusually aggravated
involved in the type of deception Keyser used in committing the
theft: he simply submitted a false application for employment
with the village of Kake. Officials there evidently did not
attempt to verify Keyser's information before deciding to hire
him. Because Keyser's conduct was not among the worst in its
category, it did not in itself justify an exceptionally severe
sentence.
Keyser's character and background are another matter.
For purposes of determining whether Keyser's character and
background justified classifying him as a worst offender or
sentencing him to an exceptionally lengthy term of imprisonment,
the sentencing court was fully entitled to consider Keyser's
conduct on probation and the additional information that came to
light in the updated presentence report. See Andrew v. State,
835 P.2d 1251, 1254-55 (Alaska App. 1992); Chrisman v. State, 789
P.2d 370, 371 (Alaska App. 1990).
The totality of the information available upon
revocation of Keyser's probation certainly justifies the
conclusion that his prospects for rehabilitation were
considerably poorer than those of a typical first felony offender
and that he posed a continuing danger to the community far
greater than was reflected by the isolated crime that led to his
conviction.
The sentencing record reveals that Keyser has engaged
in a continuous pattern of fraudulent misconduct over a period of
approximately ten years. Keyser's crimes have enabled him to
obtain substantial amounts of money -- in the form of wages,
loans, and other monetary compensation -- to which he was not
entitled. In the process, he has disrupted the civic functions of
numerous small communities and has caused financial and personal
hardship to countless individuals. And he has persisted in this
misconduct, seemingly escalating it, despite being placed on
formal probation for his recent conviction of a felony.
These circumstances, in our view, justify the
conclusion that Keyser's case is "even more serious -- and
therefore deserving of even greater punishment -- than the case
of a typical second felony offender committing a typical offense
of the same class." Chrisman v. State, 789 P.2d at 371. In
fact, despite Keyser's status as a first felony offender, we
believe that the extraordinary circumstances of his case could
even justify a sentence somewhat beyond the six-year benchmark
for exceptionally aggravated first-offense class B felonies.2
These same circumstances differentiate Keyser's case from other
aggravated first-offense, first-degree theft cases in which lower
sentences have been imposed and approved.3
Our independent review of the record nevertheless
convinces us that the sentencing court was clearly mistaken in
concluding that Keyser's background and his conduct on probation
qualified him for designation as a worst offender for whom the
maximum term was necessary -- that is, "the worst type of
offender `within the group of persons committing the offense in
question.'" Hintz v. State, 627 P.2d at 210 (quoting Wilson v.
State, 582 P.2d at 157 n.3).
Almost all cases involving worst offender findings
based on the seriousness of an offender's background (as
distinguished from worst offender findings based on the
seriousness of the crime involved in the particular case) have
dealt with offenders whose past misconduct, regardless of whether
it resulted in formal convictions, clearly established them to be
undeterrable and incapable of rehabilitation, that is, offenders
"who . . . had `past proven criminal record[s],' . . . [or] whose
criminal histories had `establish[ed] an ingrained, compulsive
criminal pattern.'" DeGross v. State, 816 P.2d 212, 219 (Alaska
App. 1991) (quoting Contreras v. State, 767 P.2d 1169, 1175
(Alaska App. 1989), and Schuenemann v. State, 781 P.2d 1005, 1009
(Alaska App. 1989)).
We have previously approved extremely severe sentences
for first-offense class B felons -- even sentences exceeding the
single-count maximum of ten years -- when an offender's
background revealed persistent criminality in the face of prior
efforts at deterrence or despite repeated, unsuccessful efforts
at rehabilitation. See, e.g., Kirlin v. State, 779 P.2d 1251
(Alaska App. 1989). See also State v. Graybill, 695 P.2d 725,
731 (Alaska 1985).
On the other hand, we have disapproved maximum
sentences for such offenders, despite a pattern of misconduct and
psychological evidence indicating potential danger, when the
sentencing record contained no meaningful showing that the
offender's ability to be deterred had been tested or that past
rehabilitative efforts had failed. See Skrepich v. State, 740
P.2d at 954-55. See also DeGross v. State, 816 P.2d at 218-19.
In particular, we have observed the need to avoid giving undue
prominence to predictions of danger based on psychological
information. Skrepich v. State, 740 P.2d at 954-55; Maal v.
State, 670 P.2d 708, 711-12 (Alaska App. 1983).
These cases reflect the law's traditional recognition
that the most reliable indicator of future danger is an
offender's willingness to reoffend despite previous efforts at
deterrence or rehabilitation. See, e.g., State v. Rastopsoff,
659 P.2d 630, 640 (Alaska App. 1983). Absent a background
showing failure in the face of rehabilitative or deterrent
measures, predicting future conduct necessarily becomes
speculative. Skrepich v. State, 740 P.2d at 955.
In the present case, although Keyser has engaged in a
prolonged pattern of increasingly serious criminal misconduct and
has persisted in offending despite a misdemeanor conviction in
Florida in 1987 and his current felony conviction in 1989,
Keyser's capacity for deterrence has never been tested. Before
his probation was revoked in this case, he had evidently been
incarcerated on but one occasion; his incarceration was in connec
tion with the original sentencing hearing here, when he received
only ninety days in jail, with credit for time served.
Likewise, Keyser is hardly an offender who has "`run
the gamut of judicial tools used for rehabilitation.'" State v.
Graybill, 695 P.2d at 729 (quoting the presentence report
prepared in Graybill's case). Keyser's background includes no
meaningful history of failed rehabilitative efforts. Neither in
the past nor under the conditions of probation included in the
original suspended imposition of sentence in this case has Keyser
ever been encouraged or required to participate in counseling,
treatment, or other forms of rehabilitation. Indeed, in the
present case, despite clear warnings in the original presentence
report that Keyser was apt to reoffend as a probationer absent a
structured and closely supervised program, his original suspended
imposition of sentence allowed his release on probation with only
token oversight.
Finally, we note that Dr. Caldwell's psychological
evaluation of Keyser fails to support the conclusion that Keyser
is unamenable to rehabilitation or that he could not be deterred
by a sentence less than the maximum term. Nowhere does Caldwell
address the issue of Keyser's capacity for deterrence. In
pointing out various negative personality traits which suggest
"lifelong adjustment problems," and in concluding that Keyser is
a poor candidate for "insight oriented individual psychotherapy,"
Caldwell certainly does indicate that Keyser's rehabilitative
prospects are guarded. But Caldwell goes on to recommend that
Keyser is "most likely to benefit from close supervision and long
term direct monitoring of his behavior and activities in
progressively diminishing direct management." Contrary to the
state's argument that Caldwell's report shows Keyser to be a
"pathological liar" for whom rehabilitation is a lost cause, this
statement appears to expressly recognize the existence of
treatment methods to which Keyser could be responsive.
CONCLUSION
Given the absence of significant past deterrent or
rehabilitative efforts, and in light of the psychological
report's apparent finding that Keyser may be amenable to
treatment for the problems underlying his criminal behavior, we
hold that the record does not support the sentencing court's
finding that Keyser is the type of "intractable offender" who can
neither be rehabilitated nor deterred.4 Having independently
reviewed the entire sentencing record, we conclude that the
court's imposition of a maximum sentence based on this finding is
clearly mistaken. McClain v. State, 519 P.2d at 813-14.
The sentence is REVERSED, and this case is REMANDED for
resentencing.
_______________________________
1. Keyser paid the restitution to Pikesville before his
sentencing hearing in the present case, and the Kentucky case was
apparently dismissed.
2. See State v. Jackson, 776 P.2d 320, 326 (Alaska App.
1989) (establishing six years as the benchmark upper limit for an
exceptionally aggravated class B felony committed by a first
felony offender); cf. Osterback v. State, 789 P.2d 1037 (Alaska
App. 1990) (affirming a sentence of ten years with four years
suspended for a first felony offender convicted of a class B
felony, although the sentence as a whole somewhat exceeded the
Jackson six-year benchmark); Skrepich v. State, 740 P.2d 950
(Alaska App. 1987) (also concluding that a sentence of ten years
with four suspended would be justified for a first-offense class
B felon).
3. See, e.g., Karr v. State, 686 P.2d 1192 (Alaska 1984);
Short v. State, 676 P.2d 612 (Alaska App. 1984); Brezenoff v.
State, 658 P.2d 1359 (Alaska App. 1983). Cf. State v. Karnos,
696 P.2d 685 (Alaska App. 1985).
4. In fact, we note that the sentencing court's finding
that Keyser is an intractable offender seems somewhat at odds
with its separate finding emphasizing the importance of specific
deterrence as a factor in Keyser's sentence.
