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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PETER NAGASIAK, )
) Court of Appeals No. A-5143
Appellant, ) Trial Court No. 4BE-93-150 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1396 - March 3, 1995]
________________________________)
Appeal from the Superior Court, Fourth
Judicial District, Bethel, Dale O. Curda,
Judge.
Appearances: Myron Angstman, Angstman
Law Office, Bethel, for Appellant. James K.
Metcalfe, District Attorney, Bethel, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Peter Nagasiak appeals the sentence he received for two
counts of second-degree sexual abuse of a minor, AS
11.41.436(a)(2). We affirm.
Nagasiak was indicted on one count of first-degree
sexual abuse of a minor and three counts of second-degree sexual
abuse of a minor for engaging in sexual penetration and sexual
contact with his seven-year-old stepdaughter. He ultimately
pleaded no contest to two counts of second-degree sexual abuse,
and the other two charges were dismissed.
Nagasiak was a first-felony offender. The offense of
second-degree sexual abuse of a minor is a class B felony.
AS 11.41.436(b). With certain exceptions not applicable here,
there is no presumptive term for first-felony offenders convicted
of class B felonies. See AS 12.55.125(d). Thus, Nagasiak's
sentencing was not governed by the presumptive sentencing
statutes. Nevertheless, the State gave notice that it intended
to prove four of the aggravating factors listed in AS
12.55.155(c), so that the superior court might sentence Nagasiak
to a term of imprisonment exceeding the 4-year presumptive term
for second-felony offenders. See Wylie v. State, 797 P.2d 651,
662 (Alaska App. 1990); Austin v. State, 627 P.2d 657, 657-58
(Alaska App. 1981). The State in fact asked the superior court
to impose a composite sentence of 10 years' imprisonment with 6
years suspended.
At sentencing, Nagasiak conceded that the State could
prove two of these aggravating factors: (c)(18)(A) - that the
offense was committed against someone living in the same dwelling
as Nagasiak, and (c)(18)(B) - that Nagasiak had engaged in the
same or similar conduct with the same victim on other occasions.
Superior Court Judge Dale O. Curda found that the State had
proved aggravator (c)(5) - that the seven-year-old victim was
particularly vulnerable because of her youth. The judge further
found that the State had proved aggravator (c)(10) (that
Nagasiak's offense was among the most serious) for two reasons:
because Nagasiak engaged not only in sexual contact with the
victim but also in digital penetration of the victim (conduct
constituting the next higher degree of offense), and because
Nagasiak had engaged in other uncharged sexual abuse of the same
victim. Judge Curda then declared that he believed aggravating
factors (c)(10) and (c)(18)(B) rested on the same basic facts and
that these two factors therefore should be merged for purposes of
determining Nagasiak's sentence.
Referring to the sentencing benchmarks established by
this court in State v. Jackson, 776 P.2d 320, 326-27 (Alaska App.
1989), Judge Curda concluded that Nagasiak's case was typical to
moderately aggravated, and that Nagasiak should therefore receive
a sentence within the 1- to 4-year range. After reviewing the
sentencing goals enunciated in State v. Chaney, 477 P.2d 441, 443-
44 (Alaska 1970), Judge Curda sentenced Nagasiak to a composite
sentence of 9 years' imprisonment with 6 years suspended (3 years
to serve).
On appeal, Nagasiak concedes that the State proved the
four aggravating factors, but he argues that Judge Curda should
not have placed so much weight on them. This contention is moot.
As explained above, Nagasiak's case was not governed by presump
tive sentencing. Moreover, Nagasiak received a more favorable
sentence than the 4-year presumptive sentence for second-felony
offenders. See Tazruk v. State, 655 P.2d 788 (Alaska App. 1982).
Thus, the Wylie and Austin rules do not govern Nagasiak's case.
In short, Judge Curda did not need to find any aggravating
factors to support the sentence he imposed on Nagasiak.
Nagasiak further argues that Judge Curda misapplied the
Jackson benchmark sentencing ranges. Nagasiak asserts that his
prospects for rehabilitation are "particularly favorable" and
that he therefore should have received a sentence of between 3
months and 1 year to serve. However, Judge Curda specifically
addressed Nagasiak's prospects for rehabilitation and found them
problematic. On the one hand, Nagasiak confessed to the police
before the abuse came to the attention of the authorities in any
other fashion. On the other hand, following this confession (and
before his indictment), Nagasiak again sexually abused his
stepdaughter. Judge Curda concluded that, on the whole,
Nagasiak's prospects for rehabilitation were good. However,
Judge Curda found that, under all the circumstances, Nagasiak's
offense was "moderately aggravated" for purposes of the Jackson
guidelines. Weighing the three sentencing goals of reaffirmation
of community norms, rehabilitation of the offender, and
deterrence of future crime, Judge Curda concluded that Nagasiak
should serve a considerable term of imprisonment, accompanied by
a lengthy suspended term.
A sentencing judge has substantial discretion when
evaluating the priority of the various sentencing goals and the
weight they should receive under the facts of a particular case.
Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973). Upon
examination of the record in this case, we do not find that Judge
Curda abused that discretion.
Nagasiak next asserts that his sentence is dispropor
tionately severe when compared to the sentences Judge Curda has
imposed in other analogous sexual abuse cases. We decline to
employ unreviewed superior court sentencing decisions as a basis
for evaluating Nagasiak's sentence. When this court decides a
sentence appeal, we base our decision upon the entire trial court
record and upon the arguments and legal authorities presented by
the parties. Our affirmance or disapproval of an appealed
sentence is premised on the litigation process, a process in
which interested parties and their attorneys present their views
of the sentence in an adversary posture. The two superior court
sentences that Nagasiak wishes to rely on have not been examined
on appeal. We lack the full record of those proceedings, and,
more important, we lack the benefit of the adversary process in
determining the propriety of the sentences imposed in those two
other cases. We therefore decline Nagasiak's suggestion to use
these unappealed sentences as a basis for comparison when
evaluating Nagasiak's sentence.
Finally, Nagasiak argues that his sentence is dispropor
tionate when evaluated in light of this court's decision in Weiss
v. State, 784 P.2d 251 (Alaska App. 1989). The defendant in
Weiss was a first-felony offender who repeatedly engaged in sex
with his fourteen-year-old sister-in-law; he pleaded guilty to
one count of second-degree sexual abuse of a minor. The superior
court sentenced Weiss to serve 4 years in prison. Weiss, 784
P.2d at 251-52. This court did not overturn the superior court's
sentence, but suggested that the superior court re-examine and
justify the sentence in light of the favorable aspects of Weiss's
background and the apparently mitigated nature of the offense.
With regard to the mitigated nature of the offense, this court
quoted from a trial court psychiatric report that
[t]here is nothing at all in Mr. Weiss'
history or in the information available ...
from the police reports to suggest that he is
a pedophile. His sister-in-law, although
only four-teen years of age, was a sexually
mature and experienced woman and, while Mr.
Weiss may have exploited her sexually, it
seems clear that his sexual impulses are
adult[.]
Weiss, 784 P.2d 252-53. Nagasiak's sexual abuse of a seven-year-
old child is readily distinguishable from the facts of Weiss.
The judgement of the superior court is AFFIRMED.
