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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4380
Appellant, ) Trial Court No. 1JU-S90-
2051CR
)
v. ) O P I N I O N
)
AMELIA T. HERNANDEZ, )
) [No. 1359 - July 29, 1994]
Appellee. )
________________________________)
Appeal from the Superior Court, First Judi
cial District, Juneau, Larry R. Weeks, Judge.
Appearances: William H. Hawley, Assistant
Attorney General, Office of Special Prosecu
tions and Appeals, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for
Appellant. Rex Lamont Butler, Anchorage, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
COATS, Judge, dissenting.
Amelia Hernandez was convicted by a jury of one count
of assault in the second degree, one count of assault in the
third degree, and two counts of assault in the fourth degree.
Superior Court Judge Larry R. Weeks imposed a composite sentence
requiring Hernandez to serve one year of unsuspended time in jail
and specifying that she could fulfill eight months of the
unsuspended term by performing community work instead of actually
serving time in jail. This left Hernandez four months of actual
jail-time to serve. The state has appealed, arguing that
Hernandez' sentence is too lenient. We agree and, accordingly,
disapprove the sentence.1
FACTS AND PROCEDURAL BACKGROUND
1. The Offenses
Hernandez' convictions stem from injuries that she
recklessly inflicted against three children who were entrusted to
her care when she operated an unlicensed daycare center in
Juneau. Hernandez began providing daycare after moving to Juneau
in 1983. On February 6, 1987, twenty-one-month-old S.O. suffered
a broken leg while in Hernandez' care. The injury went
undetected until S.O.'s parents picked S.O. up at the end of the
day. Hernandez claimed that another child must have fallen or
jumped on S.O.'s leg. Evidently alerted by this incident,
Community Care Licensing Specialist Alice DaCosta called on
Hernandez at home in February 1987. DaCosta discovered that
Hernandez had eleven children under the age of six in her care.
DaCosta instructed Hernandez that unlicensed daycare providers
were prohibited from having charge of more than four children.
DaCosta encouraged Hernandez to become licensed and instructed
her to reduce to no more than four the number of children in her
care.
However, Hernandez took no steps to secure a license.
The following month, in March 1987, DaCosta wrote to Hernandez,
reminding her of the licensing requirement, enclosing information
concerning the licensing process, and asking whether Hernandez
planned to become licensed. Hernandez did not respond and
continued to operate her daycare business.
In October 1989, a visitor at Hernandez' home observed
at least eleven young children in her care. On approximately
October 31, 1989, Hernandez caused physical injury to one of
these children, three-year-old M.C., by grabbing M.C. by the neck
and squeezing. Hernandez' actions caused M.C. to become
hysterical and urinate. The force used by Hernandez was
sufficient to leave bruises on M.C.'s neck.
On September 17, 1990, while in Hernandez' care, three-
month-old M.R. sustained a forceful blow to her head that
resulted in a life-threatening skull fracture. Although M.R. was
obviously injured and unresponsive, Hernandez did not report the
injury or seek medical care for the infant. When M.R.'s mother
came to pick her baby up, she noticed that M.R.'s head was
swollen and that M.R. was limp and lethargic. She immediately
took M.R. to the hospital. The infant was found to be in
critical condition upon admission.
In the immediate aftermath of the incident, Hernandez
gave varying accounts to different people but consistently denied
that M.R. had sustained any injury while in her care. Discovery
of M.R.'s fractured skull was delayed for several hours due to
Hernandez' insistence that nothing traumatic had happened to the
child. Once the skull fracture was revealed, M.R.'s Juneau
physician decided that it was necessary to evacuate M.R. to
Seattle, where a neurosurgeon would be available for further
treatment. M.R.'s parents were forced to travel to Seattle to be
with their daughter. M.R. remained hospitalized there for a
prolonged period but eventually recovered. Although M.R.'s
prognosis was favorable by the time of Hernandez' trial --
approximately one year later -- the possibility of future
neurological complications due to her injury could not be ruled
out.
Within ten days of M.R.'s injuries, the police visited
Hernandez' home on two occasions. On September 20, 1990, three
days after the incident, they found that, in addition to her own
two daughters (who were then twelve and seven years old),
Hernandez was providing care for eleven children -- two were six
years old; the rest were three years old or younger. On
September 26, Hernandez was revisited and was found to be in
charge of seven children, not counting her own daughters.
Hernandez was cited on both occasions for providing illegal
daycare. She entered no- contest pleas to the charges on October
25 and was ordered to pay a fine and to complete a one-year
period of probation.
Within days of pleading no contest and being sentenced
-- sometime between October 29 and November 9, 1990 -- Hernandez
bruised and scratched seven-month-old S.P. about the head and
body. During the same period, Hernandez inflicted injuries to
S.P.'s mouth, tongue, and throat with a dangerous instrument,
most likely by jamming a spoon down his throat. By the time
S.P.'s parents discovered these injuries, S.P.'s mouth had become
severely infected and required emergency-room treatment.
Based on these incidents and several others, Hernandez
was charged by indictment with eight counts of assault (in
varying degrees) and one count of reckless endangerment.
Hernandez' first trial resulted in an acquittal on four of the
assault counts (including the count charging her with assault for
breaking S.O.'s leg in 1987) and a conviction on the reckless
endangerment count; the jury deadlocked on the four remaining
assault charges.
After a second trial, Hernandez was convicted of the
remaining charges: for the injuries Hernandez inflicted to M.C.'s
neck in 1989, Hernandez was convicted of fourth-degree assault --
recklessly causing physical injury to another person in violation
of AS 11.41.230(a)(1); for breaking M.R.'s skull in September of
1990, Hernandez was convicted of assault in the second degree --
recklessly causing serious physical injury to another person in
violation of AS 11.41.210(a)(2); for bruising and scratching
S.P., Hernandez was again convicted of fourth-degree assault --
recklessly causing physical injury; and for injuring S.P.'s
mouth, tongue, and throat, she was convicted of third-degree
assault -- causing physical injury by means of a dangerous
instrument in violation of AS 11.41.220(a)(2).
2. The Offender
At the time of sentencing, Hernandez was forty-five
years of age. Little is known of Hernandez' childhood, because
she did not provide information to the presentence investigator.
Apparently, Hernandez graduated from high school and worked
initially as a hairdresser in California. Hernandez married
Roberto Hernandez, Jr., and the couple later moved to Texas,
where Hernandez, at some point, began providing daycare in her
home. The couple moved to Juneau in 1983, when Roberto
Hernandez, an I.R.S. agent, transferred to the Juneau I.R.S.
office. Upon moving to Juneau, Hernandez continued to provide
daycare services in her home.
Hernandez has two children, daughters, who were nine
and fourteen years old at the time of sentencing. There is no
indication that Hernandez has ever abused or mistreated her own
children. With their combined incomes, the Hernandezes
maintained a seemingly stable and prosperous lifestyle.
Hernandez was well liked in Juneau, and she received strong
support from friends and acquaintances in the community, many of
whom wrote to the sentencing court in Hernandez' behalf
expressing disbelief at her charges and conviction. Apart from
her 1990 convictions for providing illegal daycare, Hernandez had
no prior criminal record.
Despite these favorable characteristics, a
psychological evaluation prepared for sentencing at the request
of Hernandez' counsel provided substantial cause for concern
about Hernandez' capacity for rehabilitation. Dr. Doleshal, who
prepared the report, found Hernandez to be "suspicious,
defensive, and tense" during the evaluation, and he concluded
that "she did not cooperate with the evaluation in a forthright
manner." Doleshal's overall evaluation was that Hernandez
is highly resistive to self-disclosure
primarily due to rigidly neurotic
psychological defenses. Her judgement and
comprehension also appear to be compromised
because of cultural and intellectual factors.
All of these dynamics are coalesced in her
guarded, apprehensive and distrustful
personality style concealing much of the
"truth" about her family dynamics, behavior,
beliefs and life style. Such individuals do
not permit much "access" into their true
character[.]
Doleshal believed that "the dynamic of overcontrolled
hostility may have played a role" in Hernandez' offenses. He
theorized
that most of the time [Hernandez'] rigid
defensive structure "keeps the lid on her
behavior," however the danger of such a
coping mechanism is that in rigidity there is
little opportunity for release and under the
wrong circumstances pressures could build to
intolerable levels. Under such conditions
one might not be able to contain the inner
anger and tension and it could be impulsively
acted out. Afterwards, the same rigid
defensive structure would shut tight in guilt
and denial of the actions.
Doleshal nonetheless commented that he did not think
incarcerating Hernandez would serve any useful purpose:
While through poor judgement, neurotic
processes, overextending her resources,
simple naivete or all of the above, she may
have played a role in the charges for which
she was indicted, she probably would have a
hard time comprehending her culpability.
Clearly, she should not be allowed to perform
any further daycare activities and
probationary monitoring would be prudent. If
she is not doing daycare or any daycare like
activities, she does not pose any threat.
Incarceration would likely do little to
enhance her insight vis a vis any
responsibility she may have had in these
matters. While it holds some punitive
relevance, it likely would be lost on
[Hernandez].
3. The Sentencing
Hernandez' second-degree assault conviction for
breaking M.R.'s skull amounted to a class B felony and, as such,
was punishable by a maximum term of ten years in prison. AS
11.41.210(b); AS 12.55.125(d). Her conviction of third-degree
assault for injuring S.P.'s mouth, tongue, and throat was a class
C felony and was punishable by a maximum of five years in prison.
AS 11.41.220(b); AS 12.55.125(e). The fourth-degree assault
convictions for injuring S.P. and M.C. were class A misdemeanors,
punishable by maximum terms of one year in jail. AS
11.41.230(b); AS 12.55.135(a).
At the sentencing hearing, Hernandez insisted that she
had done nothing wrong; in allocution, her only statement was, "I
am not guilty." Because Hernandez had no prior felony
convictions, she was not subject to presumptive sentencing. The
state nevertheless requested Judge Weeks to impose a composite
term exceeding the four-year presumptive term applicable to
second- felony offenders convicted of class B felonies. In
support of this request, the state alleged several aggravating
factors.2 Judge Weeks found two of the alleged factors to be
established by clear and convincing evidence: that Hernandez'
victims were particularly vulnerable by virtue of their extreme
youth (AS 12.55.155(c)(5)), and that Hernandez' criminal history
included prior conduct involving aggravated or repeated instances
of assaultive behavior (AS 12.55.155(c)(8)).
In concluding that the latter aggravating factor had
been established, Judge Weeks expressly found, by clear and
convincing evidence, that Hernandez had committed the assaults
that she was acquitted of by the first jury, including the 1987
assault in which S.O.'s leg was broken.3 In addition, although
rejecting the state's contention that Hernandez' assault on M.R.
was among the most serious included in the definition of second-
degree assault, see AS 12.55.155(c)(10), Judge Weeks expressly
found that "the nature of this second degree assault is more
serious than your typical second degree assault."
Despite these findings, Judge Weeks suspended the
imposition of Hernandez' sentence for ten years on the second-
degree assault charge, ordering Hernandez to serve one year in
jail as a special condition of the suspended imposition of
sentence. Judge Weeks also ordered Hernandez to complete five
years of probation and to refrain from having custody of any
children other than her own for ten years. On Hernandez' third-
and fourth-degree assault charges, Judge Weeks imposed sentences
totaling eighteen months' imprisonment with twelve months
suspended. Judge Weeks allowed the six months of unsuspended
time for these offenses to be served concurrently with six months
of Hernandez' one-year term for second-degree assault, yielding a
total unsuspended term of one year.4 The judge further specified
that Hernandez would be permitted to perform community work in
lieu of eight months of the unsuspended jail term, at the rate
specified in AS 12.55.055(d).5 This left Hernandez only four
months of actual jail-time.
Hernandez appealed her conviction on a variety of
grounds; the state appealed the sentence, claiming that it was
too lenient. In Hernandez v. State, Memorandum Opinion and
Judgment No. 2806 (Alaska App., November 10, 1993), we affirmed
Hernandez' conviction. We now address the state's sentence
appeal.
DISCUSSION
Although Hernandez was convicted of, and sentenced for,
four separate assaults involving three different victims, the
appropriateness of her total sentence can most readily be
analyzed by focusing on her most serious offense -- the second-
degree assault of three-month-old M.R. -- and by viewing her
remaining offenses as reflecting on the seriousness of that
crime.
Hernandez' assault on M.R. was a class B felony. In
State v. Jackson, 776 P.2d 320 (Alaska App. 1989), we conducted
an extensive survey of sentencing decisions involving first-
felony offenders convicted of class B felonies. We found that
these cases fell into four distinct sentencing ranges:
1. A typical offender committing a
typical or moderately aggravated offense
should receive an unsuspended term of a year
or more to serve. The upper limit in such
cases should be four years . . . .
2. For an offense that is
exceptionally aggravated--one that involves
the existence of significant statutorily
specified aggravating factors or other
extraordinarily aggravated circumstances--a
term of up to six years of unsuspended
incarceration . . . .
3. For a case that is less serious
than the norm for the offense, either because
it involves mitigated conduct or an offender
whose background indicates particularly
favorable prospects for rehabilitation, a
nonprobationary sentence below the one-year
to four-year range for typical offenses will
be appropriate. . . .
4. A probationary sentence--a term
involving less than ninety days of
unsuspended incarceration--should be reserved
for cases that are significantly mitigated in
terms of both the offender and the offense. .
. .
Id. at 326-27 (footnotes omitted).
Hernandez' total sentence included a year of
unsuspended incarceration, a term that at first blush appears to
place her near the bottom of the one- to four-year range
established by Jackson for typical first offenders convicted of
typical class B felonies. Two aspects of Hernandez' sentence,
however, actually place her below the typical range. First, the
sentencing court expressly permitted Hernandez to fulfill eight
months of her unsuspended sentence by performing community
service in lieu of spending time in jail. Her sentence leaves
her with only four months of unsuspended jail time to serve.6
Second, the sentencing court suspended the imposition
of Hernandez' sentence on the second-degree assault charge, a
disposition that is usually advantageous to defendants and,
hence, peculiarly suited to mitigated cases: "By its very nature,
. . . a suspended imposition of sentence is primarily meant to be
a one-time opportunity for particularly deserving first-
offenders." State v. Huletz, 838 P.2d 1257, 1259 (Alaska App.
1992).
Realistically viewed, then, Hernandez' composite
sentence was substantially more lenient than would be typical for
a first offender convicted of a single class B felony. Her total
sentence falls toward the bottom of Jackson's third benchmark
category, which encompasses nonprobationary sentences below the
one-year to four-year range for typical offenses. Jackson, 776
P.2d at 326.7 This sentence would normally be appropriate for a
first offender convicted of a class B felony only in "a case that
is less serious than the norm for the offense, either because it
involves mitigated conduct or an offender whose background
indicates particularly favorable prospects for rehabilitation."
Id.
The pertinent question thus becomes whether Hernandez'
case is in some discernible way less serious than a typical first-
offense class B felony. The answer to this question depends on
the offender, the nature of the offense, and the resulting harm:
"in determining whether a case is aggravated or mitigated, the
sentencing court must consider the totality of the circumstances
relating to the background and personal characteristics of the
offender, the seriousness of the conduct involved in the
commission of the offense, and the nature and extent of the
resulting harm." Huletz, 838 P.2d at 1259.
The information in the record pertaining to Hernandez'
background and personal characteristics reveals little to suggest
the appropriateness of a sentence more lenient than the norm for
a first-felony offender convicted of a class B felony.
As the sentencing court correctly found, despite the
absence of a formal criminal record, Hernandez had a history of
prior assaultive conduct similar to that for which she was
convicted in this case. For many years, despite express
warnings, Hernandez knowingly (almost defiantly) provided daycare
in her home for an impermissibly large number of children; at the
same time, she persistently refused to seek a license for her
business. Hernandez continued to provide daycare in crowded and
unsafe conditions in spite of several incidents that resulted in
injuries to children, including the serious 1987 incident in
which twenty-one-month-old S.O.'s leg was broken.
The record contains nothing to indicate that Hernandez'
prospects for rehabilitation are particularly favorable.
Hernandez completely denied any involvement in or responsibility
for the offenses for which she was convicted. She evidently
attempted to manipulate and/or mislead the psychologist who
prepared her psychological evaluation. The psychological
evaluation itself was largely negative, containing little if
anything to support a finding that Hernandez' prospects for
rehabilitation are better than those of a typical first-felony
offender. Dr. Doleshal gave no indication that Hernandez might
be amenable to some form of treatment or rehabilitation; indeed,
his portrayal of Hernandez' entrenched denial and his conclusion
that she is unlikely even to appreciate the deterrent message of
a prison sentence strongly suggest the contrary.
On the whole, the information in the record pertaining
to Hernandez' background and personal characteristics indicates
that Hernandez' prospects for rehabilitation are perhaps somewhat
less favorable, and certainly no more favorable, than those of a
typical first offender convicted of a class B felony. Notably,
in imposing Hernandez' sentence, Judge Weeks did not purport to
find otherwise.
Consideration of the seriousness of Hernandez' conduct
likewise reveals no basis for imposing a mitigated sentence. As
previously mentioned, Hernandez was convicted not just for the
single class B felony assault on M.R., but also for three lesser
assaults involving two other children. In addition, the
sentencing court found, by clear and convincing evidence, that
Hernandez had committed the assaults of which she had been
acquitted. All of these incidents involved victims who were
particularly vulnerable by virtue of their extreme youth.
According to the expert testimony at Hernandez' trial,
the most serious incident of assault for which Hernandez was
convicted, the assault resulting in M.R.'s broken skull, involved
an extraordinary amount of force -- force equivalent to an
automobile accident. Furthermore, Hernandez' last two assaults,
the third- and fourth-degree assaults on six-month-old S.P.,
occurred mere days after Hernandez had entered no-contest pleas
to charges of providing illegal daycare.
The fact that Hernandez acted recklessly rather than
intentionally cannot support the conclusion that her conduct was
less serious than the norm for her offenses. As defined by the
statutes under which Hernandez was convicted, assault consists of
recklessly inflicting physical injury on another person.8 Hence,
by definition, "such reckless conduct is squarely within the norm
for assault." Huletz, 838 P.2d at 1259.
Judge Weeks, addressing only Hernandez' second-degree
assault on M.R., justifiably found that Hernandez' conduct was
more serious than typical for a class B felony. Considering the
totality of the offenses for which Hernandez was convicted, there
is simply no basis for concluding that her conduct is less
serious than the norm for a first-offense class B felony.
We lastly turn to the harm resulting from Hernandez'
crimes. Hernandez' assaults involved three separate victims.
The physical harm resulting from Hernandez' assault on M.R. was
extraordinarily serious, certainly surpassing the harm involved
in a typical case of second-degree assault. In addition to the
physical harm Hernandez inflicted on her victims, the sentencing
record establishes that the families of two of the victims, M.R.
and S.P., were profoundly affected by her crimes, experiencing
severe emotional trauma and financial hardship. In some cases,
the fact that an offender's conduct occasioned only minimal harm
might justify the imposition of a lenient sentence; Hernandez'
case, however, is plainly not such a case.
In short, whether we view Hernandez' case from the
standpoint of her personal background, the seriousness of her
conduct, or the resulting harm, we find nothing to indicate that
her case called for the imposition of an unusually lenient
sentence. Indeed, from each of these three standpoints, a
plausible argument could be made that Hernandez deserved more
severe, not lenient, treatment than is typically accorded to
first- felony offenders upon conviction of class B felonies.
Hernandez nevertheless received a total sentence that
is palpably more lenient than the norm for similarly situated
offenders. As reflected by our decision in Jackson, among first
offenders convicted of class B felonies, comparably lenient
treatment has traditionally been reserved for offenders whose
cases were mitigated in some significant respect. Here, the
sentencing court did not purport to find that Hernandez'
prospects for rehabilitation were particularly favorable; or that
her conduct was in any respect less serious than normal for a
class B felony; or that it resulted in insubstantial harm. Nor
did the court articulate any other justification for the
imposition of a sentence that is unusually lenient in comparison
with sentences traditionally imposed in comparably serious cases.
Sentencing certainly demands more than a comparison of
one offender to another. It is a complex, dynamic and multi-
faceted process that requires decisions to be based on the
individual facts of each case. And so, guidelines such as those
established in Jackson are not static. They are descriptive
rather than prescriptive, reflecting historical trends rather
than establishing future imperatives. Courts -- sentencing
courts and this court alike -- must thus remain sensitive to
change and receptive to the possibility that, in any given case,
unique facts, unusual circumstances, or evolving social norms may
justify a departure from historically established sentencing
practices.
But despite the undeniable complexity of sentencing
decisions and the large measure of subjective judgment they
inevitably require, our legal system is committed to the notion
that sentencing is ultimately a rational process -- that
sentences ought to be based not on the sentiment of the moment or
on some inarticulable predilection of the sentencer, but on sound
reasons based in law, reasons capable of being articulated. If
unique reasons exist for imposing a unique sentence, those
reasons cannot go unspoken.
Precisely because sentencing is an individualized
process, the sentencing court has an obligation to explain its
reasons for selecting a particular sentence. State v. Chaney,
477 P.2d 441 (Alaska 1970). A sentencing judge who perceives
unique circumstances warranting a unique sentence must identify
those circumstances and explain their significance in relation to
the established goals of sentencing in terms that can be
understood by the defendant, the prosecutor, and the public:
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.
Williams v. State, 809 P.2d 931, 935 (Alaska App. 1991) (citation
omitted). In the present case the sentencing court articulated
no unusual circumstances justifying the unusually lenient
sentence it imposed, and our independent review of the record
discloses none.
The sentencing goals to be considered in each case
include rehabilitation, individual and general deterrence, the
reaffirmation of societal norms, that is, the expression of
community condemnation, and isolation of the offender to assure
public safety. Chaney, 477 P.2d at 443-44. Here, Hernandez
stands convicted of multiple assaults involving three different
victims; her most serious crime is a class B felony. Given the
nature and seriousness of the crimes involved in this case, we
fail to see how a sentence requiring Hernandez to serve only four
months in jail can provide any realistic deterrence to potential
offenders. We similarly fail to see how such a sentence can
adequately reaffirm societal norms and express community
condemnation for misconduct of the magnitude involved in this
case.
Certainly, when all sentencing goals cannot be
perfectly met in a given case, it is the sentencing court's
prerogative to determine the priority each goal should receive.
Nicholas v. State, 477 P.2d 447, 448-49 (Alaska 1970). The goals
of general deterrence and reaffirmation of societal norms may
properly be subordinated when competing goals are deemed more
important in a given case. Particularly in the case of a first
offender -- even a first offender convicted of a serious felony -
- the sentencing goal of rehabilitation may deserve priority if
it conflicts with other goals.
But while the need to give priority to one sentencing
goal may well justify the subordination of others that stand in
conflict with it, emphasizing a single sentencing goal to the
exclusion of others can never be justified in the absence of
actual conflict among the goals. In the present case, the
sentencing court's failure to adequately address the goals of
general deterrence and community condemnation cannot be
attributed to a conflict between those goals and others, for no
conflict was found, and none existed.
Given Hernandez' relatively poor prospects for
rehabilitation, it does not appear that an unusually lenient
sentence was either necessary or appropriate to serve the goal of
rehabilitation. The sentencing court did not find, nor does
anything in the record suggest, that a longer sentence would have
impeded Hernandez' rehabilitation. Indeed, the sentencing
court's findings give no indication that rehabilitation played a
determining role in its sentencing decision. The court appears
to have accepted Dr. Doleshal's conclusion that Hernandez'
prospects for rehabilitation were limited and that the
possibility of future misconduct by Hernandez could be better
addressed through prevention than through rehabilitation.
In this regard, the record does indicate that
Hernandez' conduct could be controlled on probation and that she
would likely pose little danger to the public if kept under
supervision to assure that she does not take charge of other
families' children in the future. We recognize, as well, that
Dr. Doleshal's psychological evaluation expressed skepticism as
to whether incarceration could have any deterrent effect on
Hernandez. To this extent, the sentencing court could properly
have concluded that a sentence more severe than the one it
imposed was not necessary for purposes of individual deterrence
and that public safety could adequately be assured by a lengthy
period of probation.9
In no respect, however, would a more substantial
sentence have conflicted with the fulfillment of these goals;
they would as readily have been met had the court imposed a
sentence calculated to promote general deterrence and express
societal condemnation.
CONCLUSION
Our independent review of the record convinces us that
the sentence imposed below does not sufficiently address the
sentencing goal of general deterrence and is "ill-suited to
express community condemnation for the type of violent crime
involved in this case." Huletz, 838 P.2d at 1260. In the
absence of articulated or articulable grounds for mitigation, the
sentencing court's choice of an unusually lenient sentence
"unduly depreciate[d] the seriousness of this type of criminal
misconduct." Id. at 1261. We hold that the sentence is clearly
mistaken.
Accordingly, the sentence is DISAPPROVED.
COATS, Judge, dissenting.
In our system of justice, sentencing is primarily a
trial court function. Nicholas v. State, 477 P.2d 447, 448-49
(Alaska 1970). A trial court judge is in a much better position
to evaluate the defendant and the evidence. An appeals court,
relying on a printed transcript and written briefs, is in a poor
position to evaluate the offender and the offense. Appellate
review of sentencing must therefore give trial courts broad
deference in these areas.
Judge Weeks, who has had extensive experience as a
prosecuting attorney, heard the evidence in two trials in this
case. On the record, it is difficult to tell exactly how Mrs.
Hernandez injured the children. If she intentionally caused the
injuries to the children, then I would agree with the majority of
the court that the sentence Judge Weeks imposed was too lenient.
If, however, Mrs. Hernandez recklessly caused the children's
injuries by attempting to supervise too many children, the
sentence was appropriate. Many people came forward in support of
Mrs. Hernandez at the sentencing hearing. Judge Weeks found that
Mrs. Hernandez was a person of good will and nearly always
provided good care for the children. As I read his findings,
Judge Weeks found that Mrs. Hernandez did not act intentionally,
but recklessly, while she was under great stress. Therefore, the
sentence Judge Weeks imposed was not too lenient.
Because Mrs. Hernandez was a first-felony offender,
Judge Weeks had a great deal of discretion in imposing sentence.
State v. Jackson, 776 P.2d 320, 327 (Alaska App. 1989). The one-
year sentence that Judge Weeks imposed is appropriate for a
"typical offender committing a typical or moderately aggravated
offense." Id. at 326. The majority criticizes this sentence
because Judge Weeks provided that Mrs. Hernandez could serve
eight months of the sentence by performing community service.
However, under AS 12.55.055(d) the legislature has provided that
The court may offer a defendant
convicted of an offense the option of
performing community work in lieu of a
sentence of imprisonment. Substitution of
community work shall be at a rate of eight
hours for each day of imprisonment.
In this statute, the legislature appears to me to have given
trial courts discretion to substitute community service for jail
time. In Jackson, we concluded that it was inappropriate
in some cases to substitute community work for the entire period
of imprisonment. Id. at 329. In that case, we concluded that
Jackson's offense required the court to impose at least a ninety-
day jail term to properly emphasize the seriousness of the
offense and community condemnation of the offender's misconduct.
Id. at 328. In other cases, we have concluded that, at a
minimum, the court was required to impose a ninety-day period of
actual incarceration in order to affirm these sentencing goals.
State v. Hooper, 750 P.2d 840, 842 (Alaska App. 1988); State v.
Karnos, 696 P.2d 685, 687 (Alaska App. 1985); State v. Doe, 647
P.2d 1107, 1111 n.12 (Alaska App. 1982). By imposing four months
of actual incarceration as well as community service, Judge Weeks
has met the requirements of the previous cases in sentencing Mrs.
Hernandez. I see no reason, therefore, to criticize his decision
to allow Mrs. Hernandez to substitute some community-work service
for some of her period of imprisonment given the fact that he
imposed four months of actual incarceration to emphasize the
seriousness of the offense and community condemnation of the
offense and the offender. It has become obvious that the State
of Alaska has limited resources to imprison people. Clearly the
top priority is to protect the public from repeat violent
offenders. It seems to me that trial courts should be encouraged
to consider alternatives to incarceration for first offenders,
particularly those like Mrs. Hernandez who seem unlikely to
reoffend if placed under proper probation controls. I
similarly would not criticize Judge Weeks' use of a ten-year
suspended imposition of sentence. By suspending imposition of
sentence, Judge Weeks was able to place Mrs. Hernandez on
probation for ten years, twice as long as he could have done
under any other sentencing scheme. See AS 12.55.090(c) and AS
12.55.085(a). This allowed Judge Weeks to control Mrs. Hernandez
under extensive probation supervision for an extended period of
time. In the event that Mrs. Hernandez' probation was revoked,
Judge Weeks would have had the authority to impose a sentence of
up to ten years of incarceration. By suspending imposition of
sentence, Judge Weeks was better able to ensure that Mrs.
Hernandez would have no opportunity to reoffend.
In addition to the other penalties he imposed, Judge
Weeks ordered Mrs. Hernandez to pay restitution totalling
approximately $13,000 to the parents of the victims of her
offenses. Judge Weeks found that Mrs. Hernandez had sufficient
assets and earning capacity to pay this restitution. This
restitution award should penalize Mrs. Hernandez while providing
some relief to the victims of her crimes.
Accordingly, I conclude that the sentence Judge Weeks
imposed was not clearly mistaken.
_______________________________
1. Under AS 12.55.120(b), when the state appeals a
sentence as too lenient, and the defendant does not appeal the
sentence as excessive, this court may only approve or disapprove
the sentence and has no authority to increase it.
2. See Wylie v. State, 797 P.2d 651 (Alaska App. 1990)
(generally requiring the state to allege and prove statutory
aggravating factors when it seeks the imposition of a first-
offense sentence exceeding the presumptive term specified for a
second- felony offender convicted of the same offense).
3. See Brakes v. State, 796 P.2d 1368, 1372 (Alaska App.
1990) (allowing sentencing court to find aggravating factors
based on conduct for which the defendant was acquitted in light
of the different burdens of proof applicable in determining guilt
and establishing an appropriate sentence); Buoy v. State, 818
P.2d 1165, 1167-68 (Alaska App. 1991) (holding clear and
convincing evidence standard applicable to sentencing court
findings under Brakes).
4. Judge Weeks concluded that Hernandez' conviction by the
first jury for reckless endangerment merged with her assault
convictions. Accordingly, the judge did not impose a separate
sentence for this offense. The ruling is not disputed in this
appeal. Judge Weeks also ordered Hernandez to pay restitution to
the families of her victims.
5. AS 12.55.055(d) authorizes sentencing judges to allow
defendants to perform community work in lieu of imprisonment at
the rate of eight hours of work per day of imprisonment.
6. Although AS 12.55.055(d) gives sentencing courts broad
discretion to allow offenders the option of substituting
community work for incarceration, our decision in Jackson
concluded that "the language of AS 12.55.055(d) makes it
reasonably clear that the legislature did not regard community
work as the functional equivalent of incarceration in all
situations." Jackson, 776 P.2d at 329. In a purely technical
sense, AS 12.55.055(d) makes a sentence of four months in jail
and 240 eight-hour days of community work the legal equivalent of
a continuous one-year jail term. When viewed in terms of
established sentencing goals such as deterrence and community
condemnation, however, these sentences cannot realistically be
equated.
7. Although, as we have indicated, a suspended imposition
of sentence is usually associated with a particularly mitigated
offense, we do not suggest that suspended impositions of sentence
should invariably be deemed to result in a more lenient sentence
or that their use is categorically limited to mitigated cases.
See footnote 9, infra. Our characterization of Hernandez'
sentence as falling below the Jackson benchmark for typical first-
offense class B felonies is based not so much on the superior
court's use of a suspended imposition of sentence as on its use
of a suspended imposition of sentence in combination with a
relatively brief term of incarceration and a provision allowing
community service in lieu of two-thirds of the jail term that the
court imposed.
8. Under AS 11.41.210(a)(2), second-degree assault occurs
when the defendant recklessly causes serious physical injury to
another person. Under AS 11.41.220(a)(2), third-degree assault
occurs when the defendant recklessly causes physical injury to
another person by means of a dangerous instrument. Under AS
11.41.230(a)(1), fourth-degree assault occurs when the defendant
recklessly causes physical injury to another person.
9. Indeed, the sentencing court's remarks make it clear
that its paramount concern was to fashion a sentence that would
provide a maximum amount of protection against future similar
misconduct by Hernandez. We recognize that the court's decision
to suspend the imposition of Hernandez' sentence on the second-
degree assault charge was prompted by its desire to find a
mechanism that would prevent Hernandez from taking custody of
daycare children for a period longer than the five-year maximum
term of probation specified under AS 12.55.090(c). Suspending
the imposition of Hernandez' sentence on the second-degree
assault charge enabled the court to order Hernandez to refrain
from having custody of children other than her own for a period
of ten years, the maximum term for a class B felony. See AS
12.55.085(a) (allowing courts to suspend the imposition of
sentence and place defendants on probation for a period "not
exceeding the maximum term of sentence that may be imposed.");
Cochran v. State, 586 P.2d 175, 177 (Alaska 1978).
We do not suggest that using a suspended imposition of
sentence in this manner is itself inappropriate, even in a
nonmitigated case. However, the sentencing court's choice of a
suspended imposition of sentence as means of enhancing public
safety in no way restricted it from imposing a term of
imprisonment that would have been sufficiently lengthy to serve
the purposes of general deterrence and community condemnation.
See AS 12.55.086.
