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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-5091
Appellant, ) Trial Court No. 3AN-S92-
8613CR
)
v. ) O P I N I O N
)
MICHAEL A. BUZA, )
) [No. 1381 - December 16,
1994]
Appellee. )
________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Karen L. Hunt,
Judge.
Appearances: Diane T. O'Gorman and
Richard W. Maki, Assistant District
Attorneys, Edward E. McNally, District
Attorney, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellant.
James D. Gilmore, Gilmore & Doherty,
Anchorage, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
COATS, Judge, dissenting.
Michael A. Buza pled no contest to a charge of theft in
the first degree, a class B felony. AS 11.46.120 (theft of
property valued at $25,000 or more). The offense is punishable
by a maximum fine of fifty thousand dollars and by a maximum term
of ten years' imprisonment. AS 12.55.035(b)(2); AS 12.55.125(d);
Presumptive terms of four and six years are prescribed for second
and subsequent felony offenders. AS 12.55.125(d)(1) & (2). As
a first felony offender, Buza was not subject to a presumptive
term. Superior Court Judge Karen L. Hunt sentenced Buza to a
fine of $49,445 and to a term of four years' imprisonment with
all but time served (one day) suspended. Judge Hunt placed Buza
on probation for five years. As a special condition of
probation, the judge ordered Buza to spend a total of five
hundred hours performing community work. The state appeals
Buza's sentence as too lenient. We disapprove the sentence.1
Buza was convicted of first-degree theft for embezzling
almost $100,000 over a four-year period from an Anchorage
building supply company where he was employed as president. At
the time of sentencing, Buza was forty-two years of age. He had
a college education, a stable family, and an exemplary work
history. Buza was apparently well respected in the community and
enjoyed considerable support. A number of prominent
businesspersons wrote the sentencing court on his behalf. The
presentence report indicated that the discovery of the
embezzlement had had a profound effect on Buza and that Buza
appeared to be sincerely remorseful. Prior to sentencing, Buza
had fully reimbursed his employer. Buza's employer wrote a
letter to the court expressing the belief that Buza had learned
his lesson and suggesting community service, rather than
incarceration, as appropriate in his case.
Based on the monetary amount involved in the case
(almost four times the minimum jurisdictional amount of $25,000),
the lengthy period of time over which the misconduct occurred,
Buza's violation of the trust that his employer had placed in
him, and the fact that Buza had essentially acted out of greed,
Judge Hunt found that Buza's conduct was among the worst included
in the definition of first-degree theft. However, given Buza's
favorable background, the level of community support he had
received, and his sincere remorse, the judge concluded that
Buza's prospects for rehabilitation were "quite good." The judge
nevertheless noted "a less bright side to his prospects for
rehabilitation." Because Buza's crime had been motivated by
greed and was not merely situational, the court expressed a
degree of uncertainty as to whether Buza might resort to
criminality again in the future.
Despite this reservation, Judge Hunt decided to
emphasize rehabilitation in imposing Buza's sentence. The judge
therefore attempted to accommodate other sentencing goals without
resorting to incarceration. To assure rehabilitation and deter
Buza from future misconduct, Judge Hunt elected to impose a
substantial suspended sentence and place Buza on probation for a
period of five years. To achieve general deterrence and
reaffirmation of community norms, the judge imposed a near-
maximum fine of $49,445 -- a figure representing half the amount
that Buza had embezzled. The judge also ordered Buza to perform
a total of five hundred hours of community work -- the statutory
equivalent of sixty-two and one-half days in jail.2 In ordering
Buza to perform community work rather than to serve time in jail,
Judge Hunt commented that, "[I]t is this court's conclusion that
this man's talents and experiences are better spent giving back
to the community, . . . and [for him] also to pay a substantial
fine."
On appeal, the state contends that, given the
seriousness of the offense for which Buza was convicted -- a
class B felony -- and the aggravated nature of Buza's conduct in
committing the offense, the sentence he received is too lenient.
In the state's view, "[c]ommunity work service, while an
appropriate part of the sentence, cannot be equated to jail time
. . . [and] is not sufficient to express community condemnation,
and it will not pose a deterrent to potential future embezzlers."
The state argues that our prior sentencing decisions required
Buza to receive a term of unsuspended incarceration. We agree.
This court's decision in State v. Karnos, 696 P.2d 685
(Alaska App. 1985) -- a first-degree theft case involving an
offender and an offense that are functionally indistinguishable
from the present case -- is all but dispositive here. Karnos, a
forty-two-year-old first felony offender, embezzled approximately
$115,000 from his employer over a period of about three and one-
half years. He was extremely remorseful after the offense was
discovered and, by the time of sentencing, had made substantial
progress toward paying restitution. Karnos enjoyed considerable
community support, and his former employer expressly recommended
against incarceration. In addition, as a result of the offense,
Karnos had had his insurance license -- his means of earning a
livelihood -- revoked and had been fined $35,000 by the Alaska
Division of Insurance. Finding Karnos' prospects for
rehabilitation outstanding, the superior court imposed a sentence
of five years, all suspended. The state appealed.
On appeal, this court concluded that, despite Karnos'
excellent prospects for rehabilitation, a probationary term3 was
inappropriate:
We believe that the trial judge was
required to impose a sentence which involved
serving at least ninety days in jail in this
case. Karnos' crime involved a large amount
of money and many acts of theft over a long
period of time. Although Karnos' personal
situation may have contributed to his crime,
this was certainly a crime of premeditation,
and not of impulse. People who commit
relatively petty thefts frequently are
sentenced to serve jail terms. We believe
that a probationary sentence unduly
[depreciates] the seriousness of the nature
of Karnos' crime and does not serve to
reaffirm societal norms against this type of
major theft. . . . [W]e conclude that the
sentence of five years of suspended time was
too lenient.
Karnos, 696 P.2d at 687 (citation and footnote omitted).
Here, too, we conclude that the imposition of a
probationary sentence is too lenient in light of the seriousness
of the crime and of Buza's conduct in committing that crime. In
deciding to impose a probationary term, the sentencing court was
aware of Karnos but did not distinguish, or even attempt to
distinguish, the circumstances involved in that case.4 Nor did
the court discuss or attempt to justify the disparity between
Buza's sentence and sentences previously approved in other major
first-degree theft cases, virtually all of which have involved
substantial periods of unsuspended incarceration.5 Finally, the
court failed to explain how Buza's probationary term can be
reconciled with the more general sentencing guidelines that this
court has previously recognized as reflecting historical
sentencing practices for first felony offenders convicted of
class B felonies -- guidelines that similarly suggest the
appropriateness of a sentence requiring the defendant to serve
unsuspended jail time of at least ninety days.6
Sentencing courts certainly have broad discretion to
determine, on a case-by-case basis, the prominence to be given to
the various goals of sentencing. And particularly in cases
involving first offenders, courts will ordinarily be justified,
as the court was in the present case, in finding the goal of
rehabilitation deserving of priority over other sentencing goals.
When the goal of rehabilitation actively conflicts with the
implementation of other goals in such cases, the sentencing court
may find it necessary to impose a sentence that leaves the other
goals to some extent unfulfilled. Yet sentences in all cases
should be tailored to fulfill each sentencing goal to the maximum
extent possible; when no active conflict exists between the goal
of rehabilitation and other goals such as deterrence and
community condemnation, the sentencing court's decision to focus
on rehabilitation as the primary goal will not justify a sentence
that unnecessarily slights the other goals. See State v.
Hernandez, 877 P.2d 1309 (Alaska App. 1994).
Here, the record reveals nothing to suggest that the
imposition of a relatively modest term of incarceration would
have conflicted with or impeded the court's paramount goal of
assuring Buza's rehabilitation. Such a term, had it been
imposed, might have contributed in large measure to fulfilling
the sentencing goals of general deterrence and community
condemnation, which otherwise, for a case of this magnitude,
appear to have been significantly slighted.7 Having
independently reviewed the entire sentencing record, we conclude
that the sentence imposed below is clearly mistaken. McClain v.
State, 519 P.2d 811, 813-14 (Alaska 1974).
We DISAPPROVE the sentence.
COATS, Judge, dissenting.
Sentencing is primarily a function of the trial court.
Trial judges have considerable discretion in sentencing,
particularly in sentencing a first felony offender, such as Buza,
who had no prior criminal record and a significant history of
positive accomplishments in his life. Given Buza's prior
history, Judge Hunt had discretion to treat him with leniency.
On the other hand, Buza's crime was a serious class B felony.
Buza embezzled approximately $100,000 from his employer, engaging
in numerous separate thefts over a lengthy period of time.
This court has upheld as not clearly mistaken sentences
of up to eight years with four years suspended for theft in the
first degree. Brezenoff v. State, 658 P.2d 1359 (Alaska App.
1983). In State v. Karnos, 696 P.2d 685 (Alaska App. 1985), a
similar case, we held that the trial judge was required to impose
a sentence which involved serving at least ninety days of
imprisonment. We pointed out:
[P]eople who commit relatively petty
thefts frequently are sentenced to jail
terms. We believe that a probationary
sentence unduly deprecates the seriousness of
the nature of [the defendant's] crime and
does not serve to reaffirm societal norms
against this type of major theft.
However, we went on and stated:
[W]e certainly believe that this was an
appropriate case for the trial judge to
consider having [the defendant] serve time on
weekends if this would help to preserve his
employment. The court could also have
allowed [the defendant] to perform some
community service time to substitute for some
incarceration time.
Id. at 687.
Judge Hunt did impose substantial sanctions in this
case. Buza is required to perform five hundred hours of
community service. The legislature allows the court to
substitute eight hours of community service for a day of
imprisonment. AS 12.55.055(d). Therefore, under AS
12.55.055(d), five hundred hours of community service is
equivalent to sixty-two and one-half days of imprisonment.8 In
addition, Judge Hunt imposed a fine of approximately $50,000.
This is a substantial penalty, even for someone with Buza's
wealth, amounting to ten percent of his net worth. In my
opinion, the majority opinion unduly minimizes this sanction.
According to the record which we have, Buza made full
restitution. Therefore, I believe that Judge Hunt could properly
regard the $50,000 fine as a substantial sanction.
I see this case as different from Karnos because in
Karnos the trial judge did not impose any imprisonment, did not
impose any community service, and did not impose a fine. I
regard Judge Hunt's sentence as imposing sufficient sanctions to
minimally comply with the Karnos decision. I am concerned that
if we disapprove Judge Hunt's sentence, we will unduly restrict
trial judges in imposing alternative sentences, sentences not
involving incarceration, in appropriate cases. It seems to me
that trial judges need to have this authority in order to make
sure that there is sufficient jail space for violent and
dangerous offenders.
Frankly, I do not disagree with the majority's concern
that a sentence which does not involve some jail time for Buza
could send the wrong message. Petty thieves are frequently
jailed, and offenders similar to Buza have served long terms of
imprisonment. Although Judge Hunt imposed substantial sanctions
in this case, a minimal period of imprisonment, perhaps twenty to
thirty days, would have been a better sentence since it would
have emphasized the fact that Buza had engaged in serious
criminal conduct. As we indicated in Karnos, Judge Hunt could
have arranged to have Buza serve the time on weekends or in some
other way so that it would not have interfered with his
employment. However, because I conclude that Judge Hunt could
properly find that Buza was particularly deserving of lenient
treatment because of his exemplary background, and because I
believe she did impose substantial sanctions in this case, I
conclude that the sentence which she imposed was not clearly
mistaken.
_______________________________
1. When the state appeals a sentence as too lenient, we
are not authorized to increase the sentence, but may only express
our approval or disapproval thereof. AS 12.55.120(b).
2. AS 12.55.055(d) specifies that when a sentencing court
elects to allow a defendant to perform community work in place of
serving time in jail, the defendant must be credited with one day
of jail for every eight hours of community work performed.
3. By "probationary term," we refer to felony sentences of
sixty days or less; conversely, "non-probationary" terms are
those involving ninety days or more of unsuspended incarceration.
See Leuch v. State, 633 P.2d 1006, 1014 n.22 (Alaska 1981); State
v. Jackson, 776 P.2d 320, 326-27 (Alaska App. 1989).
4. Referring to Karnos, the sentencing court expressly
commented, without further explanation, that the five hundred
hours of community service Buza had been ordered to serve were
equivalent to approximately two-thirds of the ninety-day term
that, according to the sentencing court, Karnos had held
"appropriate under very similar circumstances." Yet Karnos
specifically held that a ninety-day sentence was the minimum jail
term that would have been appropriate in that case. And although
we noted in Karnos the appropriateness of community work as a
sentencing alternative in such cases, we expressly indicated that
this alternative would have been a suitable "substitute for some
incarceration time." Id. at 687 (emphasis added). Cf. State v.
Hernandez, 877 P.2d 1309 (Alaska App. 1994) (indicating that, in
terms of sentencing goals such as general deterrence and
community condemnation, eight hours of community work cannot
realistically be equated to a day of jail time). The sentencing
court's basis for concluding that community work approximating
sixty days of jail time would be appropriate for Buza, instead of
the ninety days of jail time we indicated would have been
minimally appropriate for Karnos, remains wholly unexplained.
5. See, e.g., Keyser v. State, 856 P.2d 1170, 1177 & n.3
(Alaska App. 1993).
6. See Jackson, 776 P.2d at 327 (indicating that, in first-
offense class B felony cases, sentences calling for less than
ninety days of unsuspended incarceration should generally be
reserved for offenders whose conduct is exceptionally mitigated
and who, in addition, display unusually favorable prospects for
rehabilitation).
7. We particularly disagree with the sentencing court's
view that the imposition of a fine of nearly $50,000 could in
itself realistically have served to express community
condemnation or to deter Buza or other offenders from future
similar misconduct. Buza embezzled a total of nearly $100,000
over a four-year period. At the time of sentencing he evidently
owned assets valued at approximately one-half million dollars.
The fine imposed below may amount to more than the interest Buza
would have had to pay had he borrowed $100,000 at commercial
rates for a four-year period, but only modestly more. Compared
to what Buza embezzled, the amount of the fine does not seem
geared toward achieving a substantial deterrent effect or toward
expressing a significant measure of public opprobrium. At most,
it declares that white-collar criminals, if caught, will be
required to reimburse what they stole, plus a fifty percent
penalty. Given the difficulty of detecting and prosecuting white-
collar crime, such odds might seem decidedly favorable to many
potential offenders. Because the fine imposed by the court was
effectively the maximum penalty for the offense, increasing the
fine was not an option available to the court. Accordingly, the
need to fulfil the sentencing goals of community condemnation and
general deterrence called for substantial measures beyond the
fine imposed below.
8. Of course for an offender such as Buza, eight hours of
community service is probably much less onerous than having to
spend a day in jail. However, the legislature's formulation in
AS 12.55.055(d) at least allows us some basis to compare
sanctions which are, in essence, fundamentally different.
