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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
THOMAS G. MULLIN, )Court of Appeals Nos. A-4809 &
4819
) Trial Court Nos. 1JU-92-831 Cr
Appellant, ) and 1JU-87-1182 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1387 - December 30,
1994]
________________________________)
Appeal from the Superior Court, First
Judicial District, Juneau, Walter L.
Carpeneti, Judge.
Appearances: Margaret W. Berck, Juneau,
for Appellant. Cynthia M. Hora, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Following a jury trial in the Juneau superior court,
Thomas G. Mullin was found guilty of seven counts of first-degree
sexual abuse of a minor, AS 11.41.434(a)(1), and one count of
second-degree sexual abuse of a minor, AS 11.41.436(a). Because
Mullin was a third-felony offender, he faced a presumptive term
of 25 years' imprisonment for the seven counts of first-degree
sexual abuse (as well as a 6-year presumptive term for the one
count of second-degree sexual abuse). AS 11.41.434(b) and
AS 12.55.125(i)(4); AS 11.41.436(b) and AS 12.55.125(d)(2).
Superior Court Judge Walter L. Carpeneti found five aggravating
factors and sentenced Mullin to a composite term of 60 years'
imprisonment with 20 years suspended (40 years to serve). Judge
Carpeneti additionally revoked Mullin's probation from a prior
felony and imposed (consecutively) 1 year of imprisonment that
had previously been suspended. Thus, Mullin's total sentence is
61 years with 20 years suspended (41 years to serve).
Mullin concedes that his offenses are "atrocious and
worthy of the utmost community condemnation". However, he
contends that 41 years to serve, when compared to the sentences
imposed in similar cases, is an unjustifiably severe term of
imprisonment. We affirm.
Mullin's convictions for sexual abuse of a minor stem
from a five-year sexual relationship that Mullin had with M.R.D.,
the daughter of Mullin's longtime girlfriend, L.D.. Mullin and
L.D. lived together, on and off, over several years. In May
1992, M.R.D. revealed Mullin's sexual abuse to Child Protective
Services in the State of Washington. The Washington authorities
contacted Mullin's probation officer in Juneau on May 29th. (As
explained below, Mullin was on probation from two prior
felonies.) On June 1st, Mullin's probation officer had the
Juneau police check with Alaska Airlines; they found out that
Mullin had booked passage out of state for June 4th. Acting on
this information, the probation officer arrested Mullin when he
appeared for his appointment on June 2nd.
Mullin was ultimately convicted of engaging in genital,
anal, and oral penetration with M.R.D. during the months of
November 1991 to April 1992. However, M.R.D. testified that
Mullin had had sexual relations with her on a weekly basis from
the time she was five years old. (M.R.D. was approaching her
tenth birthday in April 1992.)
During the investigation of these offenses, the authori
ties discovered that Mullin had also sexually abused two other
children. One of these children was ten-year-old E.C., Mullin's
son from a previous marriage. The other child was a teenager who
used to babysit M.R.D.; this girl told the authorities that in
1987 (when she was eleven years old) Mullin had had sex with her
at least 25 times.
Mullin's first criminal conviction occurred in 1978; he
was convicted of assault and battery for attacking a woman in the
laundry room of the Hilton Hotel in Juneau. According to a later
pre-sentence report, Mullin "struck [the woman], threw her on the
floor, grabbed her throat, and placed his knee on her body while
putting his hand over her mouth to prevent her from screaming.
... Mr. Mullin desisted after being kicked in the groin by [the
victim]." For this offense, Mullin was sentenced to 180 days in
jail with 150 days suspended. Later in 1978, he was sentenced to
serve another 30 days of this sentence when he violated his
probation by drinking.
In 1980, Mullin was convicted of disorderly conduct for
striking a man; he received a 5-day jail sentence, all suspended,
and was ordered to pay a $175 fine. Mullin was later arrested
for failing to pay his fine. In 1984, Mullin was convicted of
fourth-degree assault for striking a woman; he was sentenced to a
fine plus restitution.
In 1986, Mullin was convicted of his first Alaska
felonies.1 He pleaded no contest to two counts of fourth-degree
misconduct involving controlled substances (possession of
cocaine). The investigator who interviewed Mullin to prepare the
pre-sentence report in that 1986 case wrote:
Mr. Mullin states that he does not recall the
present offense at all. He states it was his
day off and he was probably drinking heavily.
[However,] Mr. Mullin also states that he
does not use cocaine and that he has no
problem with alcohol. He states his use of
alcohol is no more than anyone else.
The pre-sentence investigator interviewed L.P., a woman
who was married to Mullin from 1975 to 1977. L.P. reported that
Mullin often beat her up during the marriage, that Mullin raped
her following their divorce, and that, when she started to see
another man 8 months after the divorce, Mullin came to her house
and "cut up all her property with a knife". L.P. also told the
pre-sentence investigator about another incident in which Mullin
threatened to kill their infant son. According to L.P., when
their child was one year old, Mullin pointed a gun at the
sleeping boy and told L.P. that, if she did not love him, there
was no use in their son's living.
The pre-sentence investigator also interviewed C.C., a
woman who was married to Mullin from 1980 to 1984. C.C. reported
that Mullin beat her up four to six times during the marriage and
that, one time when he was angry, he ripped C.C.'s couch to
pieces with a knife.
In 1984, Mullin was charged by the State of Washington
with making harassing phone calls to C.C. after she left him.
According to the complaint, Mullin made three threatening
telephone calls to his estranged wife at her place of work.
Mullin told her that "she was a dead woman" and that he would
obtain custody of the children if she were dead. Mullin failed
to appear for the trial of this charge; the Washington court
issued an arrest warrant that was still outstanding in 1986, when
Mullin committed his first Alaska felonies.
For the 1986 drug offenses, Mullin was sentenced to
2 years' imprisonment with all but 45 days suspended. The court
allowed Mullin to serve these 45 days periodically, on Mullin's
days off from work, so that he could keep his job.
In February 1987, Mullin submitted a urine specimen
that tested positive for both marijuana and cocaine. His
probation officer considered filing a petition to revoke Mullin's
probation, but Mullin checked himself into the Juneau Recovery
Unit for detoxification and drug treatment. Mullin stayed there
from February 9 to March 11, 1987, successfully completing the
program.
However, another of Mullin's conditions of probation
required him to attend MEN, Inc. an anger/violence counseling
program. Mullin refused to participate in the program; he missed
all of his appointments. According to his probation officer,
Mullin "maintain[ed] that he [did] not need the program and [that
he] missed [the] appointments either because of work or [because
of] scheduling problems created by the MEN program."
In addition, over the first year of his probation,
Mullin served only 4 days of his 45-day sentence: 2 days in
December 1986, 1 day in March 1987, and 1 day in August 1987.
Mullin was reluctant to provide his probation officer with his
work schedule for most of these months. He ultimately admitted
that "there were times he could have served [more days of his
sentence] but did not."
Based on Mullin's refusal to attend the counseling
program and on his failure to serve his jail sentence on his
available days off, Mullin's probation officer petitioned the
superior court to revoke his probation. The superior court
revoked Mullin's probation and sentenced him to serve an
additional 90 days.
On September 5, 1987, just days before Mullin's
scheduled sentencing hearing for this probation revocation,
Mullin committed another felony. Mullin was working for Temsco
Helicopters; he was entrusted with $4,116.50 that Temsco had
received from a cruise ship company. Mullin was responsible for
depositing this money into Temsco's bank account, but the money
never arrived at the bank. Three days later, Mullin gave $1800 in
cash to his girlfriend, telling her that he had made this money
in a drug deal.
Charged with second-degree theft, Mullin reached a plea
agreement with the State. Mullin pleaded no contest to the theft
charge on two conditions: that his time to serve would be limited
to 2 years (i.e., any additional imprisonment would be
suspended), and that no additional jail time would be imposed
from his drug felonies.
Mullin was imprisoned for this theft conviction from
May 1988 to September 1989. While incarcerated, Mullin
participated in a counseling program for batterers. According to
the termination summary prepared by the director of the program,
Mullin "exhibit[ed] a style of manipulation and denial[.] [He]
evidenced [a] need to control his treatment[.] He denies his
need of treatment and views other factors (job, car, etc.) as his
priorities."
In June 1990, Mullin furnished liquor to his 13-year-
old son and a group of his son's friends. One girl passed out
from drinking; she apparently spent the night in Mullin's bedroom
behind a locked door. The next morning, when she was taken to
the hospital, the girl's blood alcohol level was still .26
percent. The Juneau police informed Mullin's probation officer
that they were investigating this incident. When the probation
officer confronted Mullin, Mullin "adamantly denied" giving
alcohol to the children. "He claimed [that] the kids got into
the booze that had been left there by his friends." Despite his
denial, Mullin was convicted of furnishing liquor to minors in
July 1991 and was sentenced to 90 days in jail with 85 days
suspended.
Thus, when Mullin appeared for sentencing for the
sexual abuse offenses in this case, he had a 15-year criminal
record that included two prior felonies, several misdemeanors,
several probation revocations, and 15 traffic violations. In
addition, Mullin had committed numerous acts of violence or
threatened violence against his wives and children for which he
had not been prosecuted.
As a third-felony offender, Mullin faced a 25-year
presumptive term of imprisonment for first-degree sexual abuse of
a minor. AS 11.41.434(b) and AS 12.55.125(i)(4). Superior Court
Judge Walter L. Carpeneti found that the State had proved five
aggravating factors under AS 12.55.155(c). Of these, the judge
found three to be important to Mullin's sentence: (c)(18)(B) -
that Mullin had sexually abused other minors; (c)(10) - that
Mullin's conduct was among the most serious included in the
definition of first-degree sexual abuse of a minor; and (c)(20) -
that Mullin had been on felony probation when he committed the
sexual abuse offenses.
After reviewing Mullin's record, Judge Carpeneti
concluded that he should give no weight to the goal of Mullin's
rehabilitation when fashioning his sentence:
I agree with [the prosecutor] that reha
bilitation is not a factor to be considered
in this case. Mr. Mullin has been before the
Court a number of times, and there is no
doubt in my mind that essentially
rehabilitative sentences have been tried a
number of times [but] obviously without
success. I read the four pre-sentence
reports this morning, and the theme that
struck me in all of them is that the
defendant was given a number of chances, both
[by] this court and [by] Judge Pegues ... ,
and the rehabilitative approach obviously was
unsuccessful. ... [T]he argument that [the
prosecutor] makes concerning Mr. Mullin going
through the MEN program -- and apparently
successfully completing it -- at a time when
these offenses were going on is really a
point that can't be ignored[.] It just
doesn't appear to this Court that
rehabilitation is at all a factor that ought
to be considered in this case; it just
doesn't seem to be there.
For similar reasons, Judge Carpeneti discounted the goal of
deterring Mullin:
I don't think that's something that should be
given a great amount of weight here, because
of the fact that the defendant has been
through the court so many times, and he has
successively greater sentences, and it seems
not to have made any difference.
Judge Carpeneti concluded that deterrence of others and
community condemnation of Mullin's conduct were important
sentencing goals when fashioning Mullin's sentence. However, the
judge found that isolation should be the paramount goal attained
by Mullin's sentence:
The next factor is isolation. I agree
with [the prosecutor's] analysis that [this]
is the most important factor in this case.
Mr. Mullin [is] a person who's been through
the court system a number of times, who's had
a number of opportunities to move from a
criminal life to one that is not. He has not
taken advantage of any of those
opportunities. He has committed all
different types of offenses, as [the pre-
sentence report] points out. He now has a
criminal record spanning several types of
offenses: sexual abuse, drugs, theft,
assault. He has a record of domestic
violence [and] a long traffic record. It
seems to me that isolation is the most
important factor in trying to come up with an
appropriate sentence in this case.
Judge Carpeneti found that Mullin was a worst offender
for purposes of imposing the maximum sentence. See Tommy v.
State, 551 P.2d 179 (Alaska 1976). Judge Carpeneti further found
that a sentence beyond the 30-year maximum for any one count of
first-degree sexual abuse was necessary to protect the public
from Mullin. See Mutschler v. State, 560 P.2d 377, 381 (Alaska
1977). As noted above, Judge Carpeneti sentenced Mullin to serve
41 years in prison (61 years with 20 suspended).
In State v. Andrews, 707 P.2d 900 (Alaska App. 1985),
aff'd, 723 P.2d 85 (Alaska 1986), this court outlined three
criteria that might justify sentencing a first-felony offender
convicted of sexually abusing a minor to a term of imprisonment
substantially greater than the presumptive 8-year term. These
criteria are: (1) that the defendant abused multiple victims; (2)
that the defendant committed multiple assaults on the same
victim; and (3) that the defendant inflicted serious injury on
one or more victims. Andrews, 707 P.2d at 913-14.
Using these Andrews criteria, Mullin's sexual abuse
offense was aggravated. Mullin abused M.R.D. repeatedly over the
course of five years, and he abused two other children as well,
his son and a babysitter. These factors support a sentence
greater than the 25-year presumptive term that Mullin faced as a
third-felony offender. Moreover, Judge Carpeneti found that
Mullin was a "worst offender" (essentially, a person for whom
there was no realistic expectation of rehabilitation) and that a
sentence greater than 30 years' imprisonment (the maximum
sentence for any one of Mullin's counts of sexual abuse) was
necessary to protect society from Mullin.
In prior cases involving first-degree sexual assault
and first-degree sexual abuse of a minor, Alaska sentencing
decisions have grouped aggravated cases into two categories. For
the more serious category of offenders, represented by such cases
as Nix v. State, 653 P.2d 1093 (Alaska App. 1982), Hancock v.
State, 741 P.2d 1210 (Alaska App. 1987), and Yearty v. State, 805
P.2d 987 (Alaska App. 1991), this court has approved sentences of
up to 40 years to serve. However, for a second category of
serious offenders, represented by such cases as Hintz v. State,
627 P.2d 207 (Alaska 1981), Tookak v. State, 648 P.2d 1018
(Alaska App. 1982), Patterson v. State, 689 P.2d 146 (Alaska App.
1984), and Williams v. State, 809 P.2d 931 (Alaska App. 1991),
sentences have been limited to 30 years to serve. Mullin argues
that the facts of his case are analogous to the 30-year cases,
while the State argues that Mullin's case is more similar to the
40-year cases.
One aspect of Mullin's case distinguishes it from all
the cases listed in the previous paragraph: Mullin was a third-
felony offender and faced a presumptive term of 25 years'
imprisonment. This presumptive term represents the legislature's
judgement as to the appropriate sentence for a typical third-
felony offender who commits a typical act of sexual abuse upon a
minor. Juneby v. State, 641 P.2d 823, 833, 838 (Alaska App.
1982). Judge Carpeneti found that Mullin was not a typical
offender but was instead a worst offender. Judge Carpeneti
further found that Mullin's offenses were not typical but were
instead significantly aggravated. The record supports both of
these findings.
Mullin engaged in years-long sexual abuse of M.R.D.; he
also sexually abused two other children. The record reveals
that, besides these acts of sexual abuse, Mullin has engaged in
significant acts of violence both toward strangers and toward
members of his own households, that Mullin has already served a
substantial prison sentence (for his felony theft conviction),
that Mullin has persistently resisted both rehabilitative
programs and probation supervision, and that Mullin's criminal
behavior has escalated in seriousness over the past 15 years.
These factors place Mullin's case among the most
aggravated category of sexual abuse and sexual abuse offenders.
These factors thus support Judge Carpeneti's conclusion that
Mullin posed a substantial degree of danger to society and that,
in order to protect society, he needed to sentence Mullin to a
term of imprisonment exceeding the 30-year maximum for any single
count of first-degree sexual abuse.
Accordingly, we conclude that the sentence imposed by
the superior court is not clearly mistaken. McClain v. State,
519 P.2d 811, 813-14 (Alaska 1974). The sentencing decision of
the superior court is AFFIRMED.
_______________________________
1 Mullin had earlier been convicted of felony theft in the
State of Washington for stealing a television valued at $250.00.
He received a deferred sentencing, and the charge was dismissed
after a year.
