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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT R. ROSS, )
) Court of Appeals No. A-4786
Appellant, ) Trial Court No. 3AN-S87-3012CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1356 - July 8, 1994]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Peter A.
Michalski, Judge.
Appearances: Linda K. Wilson, Assistant
Public Defender, and John B. Salemi, Public
Defender, 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, Coats,
Judge, and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
COATS, Judge, dissenting.
Robert R. Ross was convicted by a jury of one count of
kidnapping and five counts of first-degree sexual assault. He
later entered a plea of no contest to a separate charge of second-
degree sexual assault. Superior Court Judge Peter A. Michalski
sentenced Ross to consecutive sentences totalling eighty-four
years' imprisonment.
In Ross v. State, 836 P.2d 378 (Alaska App. 1992), this
court upheld Ross' convictions but remanded his case for
resentencing. On remand, Judge Michalski reimposed the original
eighty-four-year composite term. Ross again appeals, contending
that his sentence is excessive. We affirm.
FACTS AND PROCEDURAL BACKGROUND
We addressed the facts surrounding Ross' convictions in
our original opinion:
Ross' convictions stem from two
incidents that occurred approximately a week
apart. On January 30, 1987, Ross met V.B. in
a downtown Anchorage bar; at Ross'
invitation, V.B. and several friends
accompanied Ross to his nearby house for some
beer. There, after V.B.'s friends left, Ross
physically and sexually assaulted V.B.
On February 6, 1987, Ross
approached S.A. in a downtown Anchorage bar,
grabbed her arm, and commanded her to do as
she was told. He forced S.A. to walk to his
house. There, Ross held S.A. hostage for
approximately eight hours, repeatedly
subjecting her to physical and sexual
assaults. In the early morning hours of
February 7, S.A. managed to escape Ross'
house and ran to the house of an
acquaintance[.]
Ross, 836 P.2d at 379.
At the time of these offenses, Ross was thirty-four
years old.1 We described Ross' background and his sentences for
these offenses as follows:
Ross had one prior felony: a 1982
conviction for first-degree sexual assault
that involved circumstances similar to the
assaults Ross committed against V.B. and S.A.
For the earlier crime, Ross received an eight-
year term; he was on parole for that offense
when he committed the current offenses.
For the incident involving S.A.,
Ross was convicted of kidnapping and five
counts of first-degree sexual assault.
Kidnapping, an unclassified felony, is
punishable by a maximum term of 99 years and
a minimum of five; the crime is not subject
to presumptive sentencing. AS 11.41.300(c);
AS 12.55.125(b). First-degree sexual
assault, also an unclassified felony, is
punishable by a maximum of thirty years; as a
second felony offender, Ross was subject to
presumptive terms of fifteen years for each
of his first-degree sexual assault
convictions. AS 11.41.410(b); AS
12.55.125(i)(3).
For the incident involving V.B.,
Ross was convicted of one count of second-
degree sexual assault, a class B felony. He
was subject to a four-year presumptive term
for that offense. AS 11.41.420(b); AS
12.55.125(d).
. . . .
In imposing sentence, Judge
Michalski concluded that Ross was an
extremely dangerous offender who had little
chance for rehabilitation. The judge thus
stressed the need to isolate Ross for the
protection of the community. Judge Michalski
sentenced Ross to fifty years for kidnapping.
The judge imposed fifteen years for each
count of first-degree sexual assault, making
the two counts involving anal penetration
concurrent to each other and the three counts
involving vaginal penetration concurrent to
each other, but ordering each group of
concurrent sentences to be consecutive to the
other group, as well as to the kidnapping.
This yielded a total of eighty years'
imprisonment for the offenses involving S.A.
For the second-degree sexual
assault conviction involving V.B., Judge
Michalski imposed an additional consecutive
term of four years. Relying on Ross'
dangerousness and the need to isolate him for
the maximum possible time, Judge Michalski
ordered that Ross' eligibility for
discretionary parole be restricted on the
kidnapping charge. Ross thus received a
composite term of eighty-four years without
possibility of parole.
Id. at 382-83.
In deciding to remand Ross' case for resentencing, this
court relied on Williams v. State, 800 P.2d 955 (Alaska App.
1990) (Williams I), modified on reconsideration, 809 P.2d 931
(Alaska App. 1991) (Williams II). In Williams I, we conducted an
extensive review of past sentencing decisions involving offenders
simultaneously convicted of rape -- or first-degree sexual
assault -- and kidnapping. Our opinion in Ross summarized the
review of the case law that we conducted in Williams I as
follows:
Our review indicated "a fair degree of
uniformity" in sentencing in such cases.
Williams, 800 P.2d at 958. We noted that the
cases fell into three benchmark categories.
The initial category consisted of first
felony offenders. For offenders in this
category, we observed that sentences
exceeding twenty years of unsuspended time
had rarely been approved. Id. at 959. The
second benchmark category included
kidnap/rape cases involving offenders who had
one or more prior felony convictions but
whose criminal history was not sufficiently
extensive to place them in the dangerous
offender category. As to this category, we
found that "precedents firmly establish
thirty years as the maximum composite
sentence that should ordinarily be imposed .
. . ." Id. In the third benchmark category,
we found "a handful of decisions" approving
composite sentences of more than thirty years
of unsuspended time; we observed that
"[w]ithout exception, those cases have
involved kidnappings of prolonged duration or
offenders whose prior criminal histories
established them as persistent, violent
criminals." Id. at 960.
Ross, 836 P.2d at 383.
Our opinion in Ross then emphasized the significance of
the dual statutory sentencing goals of promoting uniformity and
eliminating unjustified disparity:
Williams [II] . . . reaffirmed the
fundamental need for consideration of
historical sentencing practices -- as
reflected in benchmark sentences -- in the
sentencing process; . . . this need springs
from the legislature's concern with promoting
sentencing uniformity and eliminating
unjustified disparity -- a concern the
legislature expressed with "unmistakable
clarity" in AS 12.55.005(1), which requires
the sentencing court to consider "the
seriousness of the defendant's present
offense in relation to other offenses." [In
Williams II] we concluded:
At a minimum, . . . the
principle of reasonable sentencing
uniformity requires a sentencing
judge who decides that an offender
deserves a sentence which is
significantly different from
sentences previously given to
similarly situated offenders to
expressly find some legitimate
basis for the difference -- some
basis related to `legally relevant
sentencing criteria.' That basis
should be spelled out on the
sentencing record, so that the
defendant and a reviewing court can
understand the reasons for the
disparity.
Ross, 836 P.2d at 383-84.
We went on in Ross to compare Ross' eighty-four-year
composite term to sentences received by similarly situated
offenders convicted of similar crimes. We found that Ross'
sentence was "seemingly unprecedented" and "vastly exceed[ed]"
the sentencing benchmark applicable to his case.2
Because Judge Michalski had "failed to discuss the
seriousness of Ross' conduct in relation to other similarly
situated offenders" and "made no findings to explain the apparent
disparity between Ross' composite sentence and sentences
previously given to similarly situated offenders," we remanded
the case for additional findings in light of the two Williams
decisions:
Here, the sentencing court's failure to
make express findings concerning the
seriousness of Ross' offenses in relation to
other similar cases and the court's
consequent failure to explain the apparent
disparity of the sentence it elected to
impose preclude meaningful appellate review.
We must therefore remand this case for
resentencing in light of Williams. On
remand, the sentencing court should make
express findings in conformity herewith.
Ross, 836 P.2d at 384-85.
On remand, Judge Michalski compared Ross' case to cases
this court discussed in Williams I. The judge found Ross' case
distinguishable from those of other second offenders convicted in
kidnap/rape cases because of the nature and character of Ross'
past and current criminality -- that is, because Ross' prior
felony conviction was also for first-degree sexual assault and
because Ross' past and current offenses revealed a seemingly
escalating pattern of violence. Reiterating the view that Ross
was a remorseless and extremely dangerous offender, Judge
Michalski determined that the original sentence was appropriate,
even though the sentence exceeded the applicable Williams I
benchmark. Judge Michalski thus resentenced Ross to the same
eighty-four-year composite term that Ross had originally received
but eliminated a parole restriction that would have made Ross
ineligible for discretionary release for the first fifty years of
his sentence.
DISCUSSION
Our function on appeal is to conduct an independent
review of the entire sentencing record and decide whether Ross'
sentence is clearly mistaken. McClain v. State, 519 P.2d 811,
813-14 (Alaska 1974). In applying this standard, we use the
Williams benchmarks for kidnap/rape cases as a mechanism to
protect against the disparate treatment of similarly situated
offenders when sound reasons for disparity cannot be found. At
the same time, however, we remain mindful that sentencing
benchmarks can at most serve as an imprecise starting point for
determining appropriate sentences in individual cases. See
Williams II, 809 P.2d at 933. Sentencing benchmarks place no
hard and fast restrictions on the scope of the sentencing court's
authority in any given case. See State v. Wentz, 805 P.2d 962,
965 (Alaska 1991).
As we indicated in Williams II, 809 P.2d at 936 n.5,
case law establishes that, for more serious cases involving
second- felony offenders who have simultaneously been convicted
of sexual assault and kidnapping -- Williams I's second benchmark
category -- a composite sentence exceeding thirty years will
seldom be warranted. As a rule, higher composite sentences will
be appropriate only in genuinely exceptional cases. See, e.g.,
Yearty v. State, 805 P.2d 987 (Alaska App. 1991)(forty years).
The primary factor relied on by the superior court to
distinguish Ross from other second-category offenders was that
Ross' prior felony conviction involved an incident of first-
degree sexual assault -- one that was in many respects quite
similar to the sexual assaults for which Ross currently stands
convicted. We acknowledged the importance of this factor in our
original opinion remanding Ross' case, but we expressed
skepticism as to whether this factor could in itself justify the
significant disparity between Ross' eighty-four-year composite
term and the thirty-year composite term indicated by the
applicable Williams I benchmark:
It seems to us that the aggravated
nature of Ross' conduct and the disturbing
similarity of his prior sexual assault make
his case at least comparable to, and perhaps
more serious than, Yearty v. State. We are
thus inclined to think that a sentence
exceeding Williams' second category benchmark
of thirty years would be justified here, as
was the case in Yearty. On the other hand,
given Ross' limited criminal history, we are
skeptical that a sentence placing Ross in the
third benchmark category could be
justified[.]
Ross, 836 P.2d at 384.
Having reviewed the entire sentencing record and having
carefully considered the superior court's findings on remand, we
find our initial skepticism unwarranted.
In 1982, Ross was convicted of first-degree sexual
assault and received an eight-year sentence for an incident
involving conduct that was in many respects disturbingly similar
to the conduct involved in his current cases. Not long after
being paroled on his previous sexual assault conviction, Ross
resumed his pattern of sexual predation. Within a one-week
period, he engaged in two incidents of sexual assault against
separate victims. In the second of these incidents, Ross
kidnapped his victim and held her hostage in his own house for
eight hours, subjecting her to repeated acts of sexual assault
and to gratuitous and deliberately cruel acts of physical
violence that resulted in significant injury. The incident was
ended by the fortuitous escape of Ross' victim. Although Ross'
conduct involved no imminent threat of death to his victim, the
potential for death, serious injury, and prolonged captivity was
certainly there.3
As Judge Michalski accurately observed, the nature and
seriousness of Ross' prior felony conviction, the close factual
and temporal relationship between Ross' prior and current
offenses, and the escalating seriousness of Ross' behavior -- as
reflected in the act of kidnapping by which he carried out his
most recent sexual assault -- are all strongly indicative of
Ross' poor prospects for rehabilitation. These same
considerations establish the magnitude of danger Ross poses and
the need to protect the public by isolating him from society.
When Ross' past and current crimes are viewed as a whole, they
reveal an alarmingly dangerous pattern of sexual violence. This
pattern does not appear to stem from any momentary impulse;
rather, it evidently arises from some more urgent and enduring
compulsion whose origin is poorly understood and even more poorly
controlled by conventionally available means short of
incarceration.
The similarity and proximity of Ross' past and current
offenses plainly set Ross' case apart from cases within Williams
I's second benchmark category. Indeed, Ross' case appears to be
unique: we have found no reported cases involving offenders
convicted of kidnapping and rape who had previously been
convicted of rape. And because Ross is not situated similarly in
this respect to offenders in Williams I's second benchmark
category, the Williams I benchmark itself should not govern Ross'
case, for the aim of sentencing benchmarks is not to compel
uniformity among disparate offenders.
The pertinent question, then, is whether the unique
circumstances that set Ross' case apart from the cases included
in Williams I's second benchmark category are sufficiently
significant to warrant a composite term of eighty-four years.
The eighty-four- year term imposed below places Ross squarely
within the third benchmark category of Williams I, a category
encompassing "a handful of decisions in kidnap/rape cases" that
approve sentences sufficiently lengthy to keep offenders
incarcerated for the remainder of their lives. Williams I, 800
P.2d at 960. Our approval of virtual lifetime sentences for
offenders in this category has typically been based on our
finding of an "ingrained, compulsive criminal pattern."
Schuenemann v. State, 781 P.2d 1005, 1009 (Alaska App. 1989).
"Without exception, those cases have involved kidnappings of
prolonged duration or offenders whose prior criminal histories
established them as persistent, violent criminals." Williams I,
800 P.2d at 960.
Ross does not fit neatly into Williams I's third
category: his kidnapping was not of "prolonged duration," and his
criminal history is not extensive. Yet even when an offender's
criminal history is not extensive, the nature of the past and
current crimes can be as telling an indicator of an "ingrained,
compulsive criminal pattern" as a lengthy history of prior
convictions. This point, we think, is aptly demonstrated in
Coleman v. State, 621 P.2d 869 (Alaska 1980).
Coleman was originally convicted of two counts of rape
and one count of robbery. The convictions stemmed from two
incidents of sexual assault, the second occurring while Coleman
was released on bail for the first. As a result of these
convictions, Coleman, then a first offender, was sentenced to
serve ten years in prison. Coleman v. State, 553 P.2d 40, 52
(Alaska 1976). Two months after being paroled on this sentence,
Coleman raped and physically assaulted another victim. For the
new offenses, he was subject to a maximum term of sixty years.4
The sentencing court found Coleman to be a worst offender based
on "the proximity of the three criminal episodes in terms of time
during which Coleman was free from prison," Coleman, 621 P.2d at
885, and sentenced him to serve forty years for his new offenses,
imposing the term consecutively to approximately five years of
remaining time that Coleman was required to serve by virtue of
the revocation of his parole. Id. at 883-84.
On appeal, the supreme court affirmed Coleman's
sentence. In particular, the court upheld the trial court's
finding that Coleman was a worst offender:
Behavior showing dangerous propensities
which pose a clear risk to the public, the
nature and circumstances of a crime, and
other factors contained in the presentence
report may justify a "worst offender"
classification, as well as prior criminal
convictions. The extreme danger which
Coleman has shown he poses to the rest of
society leads us to conclude that the
superior court was not clearly mistaken in
classifying him as a "worst offender."
Id. at 885 (citations omitted).
Coleman teaches that even a relatively limited criminal
history can justify a worst-offender finding (and, by
implication, the conclusion that the offender may properly be
sentenced to the statutory maximum term) when a defendant's past
and current crimes consist of repeated acts of serious sexual
assault that are separated by a substantial period of
incarceration but, apart from incarceration, occur in close
proximity. Ross fits the Coleman criteria. Both Ross and
Coleman were subject to sentencing as second felony offenders.
Ross, like Coleman, has now been convicted of a total of three
episodes of sexual assault involving three victims. Like
Coleman, Ross committed these offenses in close proximity to one
another in terms of the time he was free from prison. And Ross,
like Coleman, has thereby shown himself to be an "extreme danger"
to society.
The salient feature distinguishing Ross' case from
Coleman's is the significantly greater seriousness of the conduct
in Ross' case. Unlike Coleman, Ross' most recent offense
consisted not of a single sexual assault but of repeated acts of
rape committed during a criminal episode that lasted eight hours
and involved deliberate cruelty. For this conduct, Ross was
convicted of five counts of first-degree sexual assault and of
the unclassified felony of kidnapping.5 Whereas Coleman was
subject to a total maximum term of sixty years and received
forty, Ross was subject to a total maximum of two hundred fifty-
nine years6 and received eighty-four. In imposing this sentence,
Judge Michalski properly found Ross to be an extremely dangerous
offender whose prospects for rehabilitation are limited, at best.
Given the persistence and proximity of Ross'
criminality, the extreme and increasing seriousness of his
crimes, and the lack of any clear prospects for his deterrence or
rehabilitation, the remote possibility of some future change in
Ross' behavior hardly seems to justify the substantial risk of
exposing future victims to the same crimes that Ross has now
committed on three occasions. The virtual lifetime sentence
imposed below was justifiably calculated to assure that Ross will
have no future opportunity to commit similar crimes.
Having independently reviewed the entire sentencing
record, we cannot say that the sentence imposed below is clearly
mistaken.
The sentence is AFFIRMED.
COATS, Judge, dissenting.
I dissent from the court's decision upholding Ross'
sentence. Ross is a serious offender and the trial court
certainly did not err in imposing a substantial sentence.
However, the court was required to impose a sentence that was
reasonable in light of sentences other courts have imposed for
similar offenders who have committed similar crimes. In our
previous decision in Ross v. State, 836 P.2d 378 (Alaska App.
1992), we pointed out that Ross' sentence was unprecedented:
In the present case, Ross'
composite sentence of eighty-four years
without eligibility for parole vastly exceeds
the second felony offender benchmark and,
indeed, substantially exceeds even the
sentences imposed in some of the cases
falling within Williams' third benchmark
category. Unlike other offenders in
Williams' third benchmark category, Ross'
criminal history -- consisting of a
misdemeanor conviction for driving while
intoxicated and a single prior felony, albeit
for a similar crime -- is not so extensive as
to qualify him as an habitual offender, see,
e.g., Contreras v. State, 767 P.2d 1169, 1175
(Alaska App. 1989), and does not appear to
"establish an ingrained, compulsive criminal
pattern" of violent misconduct. Schuenemann
v. State, 781 P.2d 1005, 1009 (Alaska App.
1989). And unlike other cases in the third
benchmark category, Ross' kidnapping did not
entail an extraordinarily lengthy abduction.
See, e.g., Morrell v. State, 575 P.2d 1200,
1202-03 (Alaska 1978)(virtual enslavement of
victim with repeated sexual assaults over
eight days).
Despite the seemingly unprecedented
length of the composite term he imposed in
this case, Judge Michalski failed to discuss
the seriousness of Ross' conduct in relation
to other similarly situated offenders.
Although the judge gave general consideration
to the sentencing criteria specified in State
v. Chaney, 477 P.2d 441, 444 (Alaska 1970),
he made no findings to explain the apparent
disparity between Ross' composite sentence
and sentences previously given to similarly
situated offenders.
It seems to us that the aggravated
nature of Ross' conduct and the disturbing
similarity of his prior sexual assault make
his case at least comparable to, and perhaps
more serious than, Yearty v. State[, 805 P.2d
987, 996-97 (Alaska App. 1991)]. We are thus
inclined to think that a sentence exceeding
Williams' second category benchmark of thirty
years would be justified here, as was the
case in Yearty. On the other hand, given
Ross' limited criminal history, we are
skeptical that a sentence placing Ross in the
third benchmark category could be justified,
particularly in light of the sketchy
psychiatric information contained in the
sentencing record.
Ross, 836 P.2d at 384 (footnotes omitted).
Given Ross' criminal history it is difficult to
criticize the sentence the trial court gave him. This is
frequently the case with people who commit serious felony crimes.
It is for this reason that we have guidelines: to try to ensure
that a defendant receives a sentence that is to some degree
comparable to the sentences similar offenders have received. I
do not think that Ross' sentence meets this standard of fairness.
I recognize that this is a difficult case. Given Ross'
history and current offenses, the trial court could certainly
find that Ross was a dangerous offender who was likely to repeat
his behavior. In light of this, I believe the court could have
imposed a sentence in the range of fifty to sixty years of
imprisonment, a sentence well beyond the normal guidelines.
However, a sentence in the range of eighty-four years still
appears to me, as it did to the court in our prior Ross decision,
to be "seemingly unprecedented."
I therefore dissent.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. In our previous opinion, we stated Ross' age to be 35
at the time of his offenses. Ross v. State, 836 P.2d at 382.
However, the presentence report indicates Ross' date of birth to
be January 17, 1953, which would place Ross several weeks past
his thirty-fourth birthday when he committed these offenses.
2. Referring to Williams I, we specifically observed:
In the present case, Ross'
composite sentence of eighty-four years
without eligibility for parole vastly exceeds
the second felony offender benchmark and,
indeed, substantially exceeds even the
sentences imposed in some of the cases
falling within Williams' third benchmark
category. Unlike other offenders in
Williams' third benchmark category, Ross'
criminal history -- consisting of a
misdemeanor conviction for driving while
intoxicated and a single prior felony, albeit
for a similar crime -- is not so extensive as
to qualify him as an habitual offender, see,
e.g., Contreras v. State, 767 P.2d 1169, 1175
(Alaska App. 1989), and does not appear to
"establish an ingrained, compulsive criminal
pattern" of violent misconduct. Schuenemann
v. State, 781 P.2d 1005, 1009 (Alaska App.
1989). And unlike other cases in the third
benchmark category, Ross' kidnapping did not
entail an extraordinarily lengthy abduction.
See, e.g., Morrell v. State, 575 P.2d 1200,
1202-03 (Alaska 1978)(virtual enslavement of
victim with repeated sexual assaults over
eight days).
Ross, 836 P.2d at 384.
We further noted:
Nor does Ross' conduct appear to
have exposed his victims to the type of
imminent, life-threatening danger that
justified an exceptionally severe first-
offense sentence of thirty years in Wilson v.
State, 670 P.2d 1149, 1154 (Alaska App.
1983). See also Williams v. State, 800 P.2d
at 958.
Ross, 836 P.2d at 384 n.5.
3. See infra note 5.
4. Coleman was prosecuted as a second-felony offender under
former AS 12.55.050(1), a habitual offender statute that
subjected a second-felony offender "to twice the longest term
prescribed for the felony of which that person is convicted."
Coleman v. State, 621 P.2d at 884 n.25.
5. It is significant that Ross was convicted of kidnapping
for conduct going beyond the type of temporary abduction and
eventual release that is common among many of the kidnap/rape
cases that factored into the Williams I benchmark sentences. As
we have already observed, Ross held his victim captive for eight
hours and, during this time, subjected her to serious physical
and sexual violence. He did not release his victim; rather, she
escaped. These circumstances involve the type of potential for
death or prolonged captivity that justifies classifying
kidnapping as among the most serious of felonies. See, e.g.,
Garrison v. State, 762 P.2d 465, 469-74 (Alaska App.
1988)(Singleton, J., concurring). The fact that this potential
danger remained unrealized here mitigates Ross' crime to a
certain extent; but the scope of mitigation must be tempered by
the recognition that the potential for more serious harm may have
gone unrealized in this case only by virtue of S.A.'s escape --
an event beyond Ross' control. See id. at 472-74 (discussing
Morrell v. State, 575 P.2d 1200 (Alaska 1978), and Nylund v.
State, 716 P.2d 387 (Alaska App. 1986)). Given these
circumstances, a fifty-year kidnapping sentence for a second-
felony offender would not have been obviously excessive, even in
the absence of multiple sexual assaults.
6. Ross' second-degree sexual assault conviction, for
assaulting V.B., was a class B felony and was punishable by a
maximum of ten years. Each of the five counts of first-degree
sexual assault involving S.A. was punishable by a maximum of
thirty years. Ross' kidnapping was punishable by a maximum of
ninety-nine years.
