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THE COURT OF APPEALS OF THE STATE OF ALASKA
RUSSELL HAIRE, )
) Court of Appeals No. A-4826
Appellant, ) Trial Court No. 3AN-S92-0989CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1360 - July 29, 1994]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Karen L. Hunt,
Judge.
Appearances: Thomas A. Ballantine, III, for
Appellant. Robert J. Collins, Assistant
District Attorney, Edward E. McNally,
District Attorney, Anchorage, and Charles E.
Cole, Attorney General, Juneau.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Russell D. Haire pled no contest to an information
charging him with two counts of sexual abuse of a minor in the
first degree. AS 11.41.434(a)(1). In return for Haire's no
contest pleas, the state dismissed a ten-count indictment
accusing Haire of multiple acts of first- and second-degree
sexual abuse of minors, as well as of unlawful exploitation of a
minor and misconduct involving a controlled substance in the
third degree; the state also agreed to a total sentencing cap of
twenty-five years' imprisonment.
Haire's offenses are unclassified felonies, punishable
by maximum terms of thirty years. AS 12.55.125(i). As a first
felony offender, Haire was subject to presumptive terms of eight
years. Haire proposed no mitigating factors and conceded the
existence of four statutory aggravating factors proposed by the
state: that the victims were particularly vulnerable due to
extreme youth; that the offenses involved more than one victim;
that his conduct was among the most serious included in the
definition of the offense; and that the offenses were committed
against family members who were living with him. AS
12.55.155(c)(5), (9), (10), and (18). Superior Court Judge Karen
L. Hunt sentenced Haire to consecutive terms totalling twenty-
five years with two suspended. Haire appeals, contending that his
sentence is excessive. We remand for further consideration and
additional findings.
Haire's convictions stem from his sexual abuse of two
stepdaughters, who were then nine and seven years old, and
numerous other young children who were friends of Haire's
stepchildren. The abuse lasted over a period of approximately
four months and consisted of numerous and varied acts of sexual
contact and penetration. During this time, Haire displayed X-
rated videos to his stepchildren and their companions and offered
them cigarettes, liquor, and marijuana. He then engaged in
sexual contact with them. Haire would at times entice his young
victims into collective sexual activity, both with him and among
themselves. Haire photographed these activities and had various
children take photographs of each other, unclothed and in
sexually explicit poses. To prevent disclosure of his
activities, Haire threatened to reveal photographs of his victims
if they reported his acts of abuse. After the abuse was reported
and an investigation commenced, Haire threatened the parents of
at least one of his victims with public disclosure of their
child's photographs if they cooperated with the investigation.
Abundant evidence at the sentencing hearing established that
Haire's victims and their families suffered devastating
psychological and emotional trauma as a result of Haire's crimes.
Although Haire was nominally a first offender, evidence
at the sentencing hearing established that he had a long history
of sexually and physically abusive conduct, which included sexual
and physical abuse of his former wife, who was a fourteen-year-
old runaway when Haire initially met and became involved with
her, as well as repeated sexual abuse of his and his former
wife's daughter, who was between two and four years old at the
time of the abuse. A psychological evaluation prepared at
Haire's request for sentencing purposes found Haire to be "in the
highest risk category for continued molesting of children" and
concluded:
The treatment prognosis is guarded at
best for Russell. His personality
organization leads to a great deal of
grandiosity, suspicion, and a tenuous reality
base. These aspects in concert will make it
difficult for him to accept the kind of
confrontational therapy that is the treatment
of choice for the sexual perpetrator.
Haire's own statements at the sentencing hearing tended
to confirm this description. In the course of a rambling
allocution, although grudgingly and somewhat vaguely
acknowledging responsibility for a limited number of the
inappropriate acts underlying his charges, Haire discounted,
disputed, and denied most of the accusations and depicted himself
as the true victim in the case: a victim of society, of the
legal system, of his own attorney, of his former wife, of the
inmates with whom he was incarcerated, of the parents of his
victims, and, remarkably, even of the children whom he had
abused.
In imposing sentence, the superior court accepted as
established the four aggravating factors proposed by the state.
Finding Haire's case "exceptionally aggravated on the defendant's
conduct alone," the court sentenced Haire to adjusted presumptive
terms of twelve and one-half years with one year suspended on
each count. These sentences were imposed consecutively, for a
composite term of twenty-five years with two years suspended.
On appeal, Haire first argues that the sentencing court
failed to expressly find that the state's proposed aggravating
factors were supported by the evidence. Haire acknowledges that
he conceded the applicability of the factors; he nevertheless
contends that the court had an independent duty to determine that
the proposed aggravating factors actually had a factual basis in
the evidence. See Connolly v. State, 758 P.2d 633, 638 (Alaska
App. 1988). Although the sentencing court did not expressly find
sufficient evidence to support the proposed aggravating factors,
our own review of the record convinces us that there was ample
information to establish each proposed factor by clear and
convincing evidence. The sentencing court's detailed remarks
addressing the aggravated nature of Haire's crimes make it clear
that the court was aware of, and gave appropriate weight to, this
evidence. We find no plain error.
Haire next alleges that his total sentence of twenty-
five years with two years suspended is disproportionately high.
He relies on the ten- to fifteen-year benchmark this court
established in State v. Andrews, 707 P.2d 900, 913 (Alaska App.
1985), as the generally appropriate sentencing range for
aggravated first-degree sexual assault and sexual abuse cases
involving first felony offenders. Haire complains that the
sentencing court failed to consider the seriousness of his
offenses in relation to the offenses of other first offenders who
have received sentences falling within the Andrews benchmark
range.
In Williams v. State, 809 P.2d 931, 935 (Alaska App.
1991), we noted that,
while an intrinsic tension may exist between
the requirements of individualized sentencing
and the need for reasonable sentencing
uniformity, in the long run this tension can
meaningfully be resolved only through
awareness of existing sentencing practices
and consideration of the case at hand in
relation to other similar cases.
We found the consideration of each case in relation to other
similar cases to be warranted by the principle of sentencing
uniformity, expressed by the legislature 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." Williams, 809 P.2d at 934. 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.
Id. at 935 (citation omitted).
In the present case, while it did not specifically
consider sentences received by other similar offenders, the
sentencing court was generally aware of the Andrews benchmark
when it fashioned Haire's sentence. In relevant part, the court
stated:
I must follow the Andrews decision and
its [progeny]. And that is a decision that
makes it clear that even an aggravated
sentence cannot exceed fifteen years maximum
when it is the defendant's first conviction
for the crime of sexual abuse of a minor.
Under these decisions and the record before
me, I find that the defendant's sexual abuse
was perpet[rated] upon multiple victims on
multiple occasions. In addition, he has
committed multiple assaults upon the same
single victim on multiple occasions. Given
this inherently aggravated conduct of the
defendant, as well as the applicability of
the specific statutory aggravators, I
conclude that the sentencing goal of
protection of the minor public requires that
the defendant be isolated for the maximum
period allowed under the Andrews line of
appellate decisions. And I find that each of
the counts for which he stands before the
court for sentencing should be considered as
separate counts and he will be given the
maximum sentence up to the [negotiated total
twenty-five-year sentencing] cap on each
count.
Although the sentencing court's awareness of, and its
declared willingness to follow, the applicable sentencing
benchmark would, under ordinary circumstances, satisfy the
requirement of considering Haire's case in relation to other
similar cases, the sentencing remarks quoted above indicate that
the court in this case misunderstood the Andrews benchmark in two
significant respects, one relating to the scope of the benchmark
and the other to its flexibility.
With respect to the benchmark's scope, the court was
mistaken in its apparent belief that consecutive terms of up to
fifteen years per count (or twelve and one-half years in this
case due to the negotiated twenty-five-year total sentencing cap)
would fall within the Andrews benchmark range. The benchmark
specified in Andrews was not meant to apply on a count-by-count
basis. In Andrews, this court recognized a benchmark sentencing
range of ten to fifteen years to serve for first offenders
convicted of aggravated instances of child sexual abuse. We
defined an "aggravated" case as one in which the defendant had
abused multiple victims, had committed multiple assaults on a
single victim, or had inflicted serious injury to one or more
victims. Andrews, 707 P.2d at 913. The Andrews benchmark was
thus meant to indicate the appropriate range for the total
sentence that would ordinarily be justified for a first offender
convicted in an aggravated case of first-degree sexual assault or
abuse. Here, although the sentencing court evidently believed
that the sentences it imposed fell within the Andrews benchmark
range, Haire's composite term of twenty-five years with two years
suspended significantly exceeds that range.
The sentencing court was also apparently mistaken with
respect to the flexibility of the Andrews benchmark. The
sentencing court's reference to the "maximum period allowed under
the Andrews line of appellate decisions" seems to indicate that
the court viewed Andrews as establishing the maximum permissible
term for a first offender in Haire's shoes. This is an
inaccurate view of the benchmark's function: "Sentencing
benchmarks place no hard and fast restrictions on the scope of
the sentencing court's authority in any given case." Ross v.
State, ____ P.2d ____, Op. No. 1356 at 8 (Alaska App., July 8,
1994).
As we observed recently in Sharp v. State, 837 P.2d
718, 727 (Alaska App. 1992):
[T]he 10- to 15-year benchmark range
established in Andrews is not an inflexible
rule of law, but rather an historically based
starting point for analyzing Sharp's sentence
under the particular facts of his case. If
there are articulable and valid reasons for
imposing a sentence outside that benchmark
range, the resulting sentence will not be
clearly mistaken. Williams v. State, 809
P.2d 931, 933-35 (Alaska App. 1991).
With specific reference to the Andrews benchmark, this
court has consistently recognized that a composite term exceeding
fifteen years will be appropriate when a first felony offender is
convicted in an exceptionally aggravated case of first-degree
sexual assault or abuse. Sharp, 837 P.2d at 726; Howell v.
State, 758 P.2d 103, 107 (Alaska App. 1988). In such exceptional
first- offense cases, we have typically approved composite
sentences involving up to twenty years of unsuspended
incarceration; on rare occasions, when faced with particularly
convincing reasons, we have approved even longer first-offense
sentences -- sentences in the range of Haire's:
In several exceptionally aggravated
cases we have approved sentences in excess of
the ten- to fifteen-year benchmark for first
offenders. These cases have involved
multiple offenses and multiple victims. Even
so, we have never approved a first offender
sentence of more than twenty years of
unsuspended incarceration except when the
defendant used a significant amount of
violence, had previously been incarcerated
for a substantial period, or both.
Howell, 758 P.2d at 107.
In the present case, the sentencing court expressly
found that Haire's case was exceptionally aggravated and gave a
detailed and comprehensive explanation of its reasons for so
finding. Our review of the sentencing record discloses nothing
to indicate that the court erred in its characterization of the
seriousness of Haire's conduct. The sentencing court's findings,
coupled with the fact that Haire was convicted for conduct
involving both multiple victims and multiple assaults committed
over a significant period of time,1 strongly suggest that his
case is deserving of inclusion among other exceptionally
aggravated cases. And, even though Haire has never previously
been incarcerated and does not appear to have used significant
violence -- the characteristics identified in Howell as
distinguishing first-offense cases in which sentences of more
than twenty years have been approved -- it is conceivable that
other extraordinary factors may be identified to justify an
unsuspended term in excess of twenty years.2
Nevertheless, the determination of an appropriate
sentence is a matter for the sentencing court in the first
instance, and Haire is entitled to a sentence that is based on a
correct application of the sentencing principles governing his
case. The sentencing court, having taken the mistaken view that
the sentence it imposed fell within the Andrews benchmark, did
not have occasion to consider Haire's conduct in relation to the
conduct of other first felony offenders for whom total sentences
exceeding fifteen years have been approved.3 Because the
sentence actually imposed was based on an incorrect
interpretation of the Andrews sentencing benchmark and because
the sentencing court did not evaluate Haire's case in relation to
other cases in which sentences exceeding this benchmark have been
imposed, we must vacate the sentence and remand this case for
resentencing.
The sentence is VACATED. This case is REMANDED for
resentencing in conformity with this opinion.
_______________________________
1. Andrews' definition of an "aggravated" case as one in
which the defendant abuses multiple victims, or commits multiple
assaults on a single victim, or inflicts serious injury to one or
more victims, Andrews, 707 P.2d at 913, indicates that cases
involving both multiple assaults and multiple victims may
appropriately be treated as exceptionally aggravated.
2. In State v. Hernandez, ____ P.2d ____, Op. No. 1359 at
17-18 (Alaska App., July 29, 1994), we emphasized that sentencing
guidelines such as those exemplified in Andrews "are not static.
They are descriptive rather than prescriptive, reflecting
historical trends rather than establishing future imperatives.
Courts . . . 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."
3. We have surveyed and commented on the cases falling in
this category on two occasions. Sharp, 837 P.2d at 726; Howell,
758 P.2d at 107. We note that, at the sentencing hearing, the
state relied primarily on Curl v. State, 843 P.2d 1244 (Alaska
App. 1992). In the context of the present case, Curl is largely
inapposite, since it involved a second felony offender who was
subject to a presumptive term of fifteen years -- almost twice
the presumptive term that served as the starting point for
sentencing in the current case.
