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THE COURT OF APPEALS OF THE STATE OF ALASKA
KEVIN CARROLL, )
) Court of Appeals No. A-4592
Appellant, ) Trial Court No. 3AN-S92-483CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1313 - October 1, 1993]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Rene Gonzalez,
Judge.
Appearances: Kevin F. McCoy, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Richard
W. Maki, Assistant District Attorney, Edward
E. McNally, District Attorney, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Kevin Carroll pled no contest to two class B felonies:
one count of assault in the second degree, AS 11.41.210(a)(1),
and one count of sexual assault in the second degree, AS
11.41.420(a)-(1). As a first felony offender, Carroll was not
subject to presumptive sentencing. Superior Court Judge Rene
Gonzalez found Carroll's case to be exceptionally aggravated and
imposed consecutive sentences totaling eight years' imprisonment
(five years for the sexual assault and three years for the
assault). Carroll appeals, contending that the sentencing court
should not have imposed consecutive sentences and that his
composite term is excessive. We affirm.
Carroll's convictions arise from an incident in which
he hit a high school student who was on her way to school over
the head with a hammer, threw her into the back of his van, and
began to sexually assault her. Carroll terminated his efforts
when his victim told him she was having her period. However, he
then tied his victim up and abducted her in the van. After
driving around for a short time, Carroll apologized to his
victim, kissed her, and released her in front of her school.
At the time of this offense, Carroll was thirty five
years of age. Although a first felony offender, Carroll had two
previous DWI convictions and evidently suffered from a
longstanding substance abuse problem. In addition, Carroll had a
lengthy history of sexually abusing children. In two prior civil
cases in which Carroll had been a party -- one a 1985 action
involving Carroll's right to visitation with a minor son and the
other a 1987 CINA proceeding involving two other minors -- the
superior court formally found that Carroll had engaged in
multiple acts of sexual abuse with various children. A
psychological evaluation prepared in connection with the 1987
CINA proceeding found Carroll to suffer from a narcissistic
personality disorder with antisocial traits and a lack of impulse
control.
Despite the two prior civil adjudications and the 1987
psychological evaluation, Carroll had never obtained -- or even
sought -- treatment for his problems. An additional
psychological evaluation prepared in connection with Carroll's
current charges essentially confirmed the original diagnosis and
found Carroll's prospects for rehabilitation to be guarded.
Given the totality of the circumstances surrounding
Carroll's current offense Judge Gonzalez found that Carroll's
conduct was among the most serious included in the definition of
second-degree sexual assault. See AS 12.55.155(c)(10). The
judge further found both of Carroll's offenses aggravated in
light of Carroll's history of repeated instances of assaultive
behavior. See AS 12.55.155(c)(8).
In sentencing Carroll to consecutive sentences totaling
eight years in prison, Judge Gonzalez emphasized the seriousness
of Carroll's conduct when viewed in light of his psychological
evaluation and history of sexually deviant behavior. Judge
Gonzalez concluded that Carroll appeared to be an exceptionally
dangerous offender who had little if any insight into his
problems and whose prospects for rehabilitation were guarded, at
best. In the judge's view, an exceptionally lengthy sentence was
necessary for purposes of individual deterrence and in order to
protect the public.
On appeal, Carroll argues that consecutive sentences
exceeding the Austin limit1 were inappropriate in his case.
However, Judge Gonzalez expressly found that Carroll's case was
exceptional and warranted a departure from Austin. The record
supports this conclusion. Carroll's longstanding history of
sexually assaultive conduct, his psychological problems, his past
failure to make any realistic effort toward rehabilitation, the
potentially life-threatening nature of Carroll's physical attack
on his current victim, and the fact that Carroll's ensuing acts
in effect amounted to attempted rape and kidnapping, qualify
Carroll's crimes for treatment as extraordinarily aggravated
first offense class B felonies.
Although Carroll maintains that his total term of eight
years is disproportionately long in comparison with other first
offenders convicted of class B felonies, he compares his case
with cases involving offenders whose assaultive histories were
less extensive than his own and whose conduct was significantly
less serious. See, e.g., Skrepich v. State, 740 P.2d 950 (Alaska
App. 1987); Benboe v. State, 698 P.2d 1230, 1231-33 (Alaska App.
1985); Howard v. State, 664 P.2d 603, 611-12 (Alaska App. 1983).
Given Carroll's background and the seriousness of the conduct for
which he was convicted, his case could as readily be compared to
those of offenders for whom we have approved sentences
significantly longer than Carroll's. See, e.g., Davis v. State,
793 P.2d 1064, 1066 (Alaska App. 1990); Kirlin v. State, 779 P.2d
1251, 1253 (Alaska App. 1989). Cf. Nylund v. State, 716 P.2d
387, 390-91 (Alaska App. 1986).
Having independently reviewed the entire sentencing
record, we 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. Austin v. State, 627 P.2d 657, 657-58 (Alaska App.
1981).
