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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JESSE I. EVAN, )
) Court of Appeals No. A-5407
Appellant, ) Trial Court No. 4BE-93-812 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1418 - July 14, 1995]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Dale O. Curda, Judge.
Appearances: Scott Jay Sidell, Law Office of Chris
Provost, Bethel, for Appellant. James K. Metcalfe, Assistant
District Attorney, Ben M. Herren, District Attorney, Bethel, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and Mannheimer,
Judges.
MANNHEIMER, Judge.
Jesse I. Evan was charged by information with two
counts of first-degree sexual abuse of a minor, AS 11.41.434(a),
and one count of second-degree sexual abuse of a minor, AS
11.41.436(a). Under a plea agreement with the State, Evan waived
grand jury indictment and pleaded no contest to the second-degree
sexual abuse charge; the other charges were dismissed. Superior
Court Judge Dale O. Curda sentenced Evan to 4 years' imprisonment
with 2 years suspended (2 years to serve). Evan now appeals this
sentence. We affirm.
Evan first challenges the superior court's reliance on
the victim's account of the crime. This account was included in
the pre-sentence report. In advance of sentencing, Evan filed a
pleading in which he "[gave] notice that he dispute[d] ... the
version of events reported by K.E.".
In his pleading, Evan argued that, as a legal matter,
K.E.'s statements could not qualify as "verified" for sentencing
purposes under Nukapigak v. State, 562 P.2d 697, 700-02 (Alaska
1977), aff'd on rehrg., 576 P.2d 982, 984-85 (Alaska 1978),
unless the State introduced independent corroboration of those
statements. Evan next argued that, even if K.E.'s statements
qualified as "verified" under Nukapigak, the superior court still
could not rely on them until Evan had cross-examined K.E. in
court. Relying on Pickens v. State, 675 P.2d 665, 671 (Alaska
App. 1984), and Agwiak v. State, 750 P.2d 846, 849 (Alaska App.
1988), Evan asserted that he had a constitutional right to
confront and cross-examine K.E. at the sentencing hearing. Evan
argued that "[t]rial judges may rely on verified hearsay
information at sentencing ... only if the defendant fails to
assert his confrontation rights". Evan concluded that, because
he "intend[ed] to cross-examine K.E. extensively", Judge Curda
could not rely on K.E.'s out-of-court statements unless the State
proved that she was "truly unavailable".
In a written order issued before sentencing, Judge
Curda partially accepted and partially rejected Evan's arguments.
The judge ruled that K.E.'s reports of other, earlier sexual
assaults committed against her by Evan were not sufficiently
verified under Nukapigak, and he would therefore not consider
these other incidents at sentencing. However, Judge Curda
declared that he would rely upon K.E.'s hearsay account of the
episode underlying the current charge against Evan. The judge
ruled that Evan's request to cross-examine K.E. did not, by
itself, prohibit the court from considering K.E.'s hearsay
statements. Rather, to accomplish this purpose, Evan would have
to offer a testimonial denial of the matters discussed in K.E.'s
account.
Evan declined to offer a testimonial denial of K.E.'s
statements. Judge Curda relied on K.E.'s statements when he
decided the existence of aggravating factors and when he
sentenced Evan. On appeal, Evan renews his argument that K.E.'s
statements in the pre-sentence report (which were apparently
obtained from police reports) could not qualify as "verified
hearsay" under Nukapigak unless the State introduced independent
evidence to corroborate K.E.'s account.
In its initial opinion in Nukapigak (hereinafter
"Nukapigak I"), the supreme court stated that "verified" meant
"corroborated or substantiated by supporting data or
information". 562 P.2d at 701 n.2. This language could be read
as support for Evan's argument. However, after saying this, the
supreme court upheld the sentencing judge's reliance on
uncorroborated hearsay reports of Nukapigak's other criminal acts
and his violent behavior. These prior crimes had not been
officially investigated or charged; the only evidence of these
prior acts was the uncorroborated accounts of other people in
Nukapigak's village; some of these accounts involved double-
hearsay. Nevertheless, the supreme court distinguished the
villagers' accounts (which it found to be "verified") from "bare
accusations or unexplained arrests". Nukapigak I, 562 P.2d at
701.
Thus, from the court's first opinion in Nukapigak, it
appeared that the requirement of "supporting data or information"
could be satisfied by data or information contained in the
hearsay account itself. This interpretation was confirmed by the
court in its opinion on rehearing ("Nukapigak II"). The court
granted rehearing to address Nukapigak's contention that the
hearsay information at his sentencing was not "verified".
[Nukapigak] complains of our holding
that the trial court was entitled to consider
evidence of other instances of antisocial
conduct contained in the presentence report.
That information consisted of statements of
various friends of Nukapigak, relatives, and
members of the village council of Point Lay,
Alaska, Nukapigak's home. We held that such
information was sufficiently verified to be
trustworthy and that it could, therefore, be
considered in sentencing, where the defendant
was given the opportunity to deny it or
present contrary evidence.
The essence of Nukapigak's argument [is
that the persons] interviewed by the author
of the presentence report had no first-hand
knowledge of the events described and,
therefore, [this] information ... should not
have been considered by the sentencing judge.
[Nukapigak] argues that the information,
being second-hand, was not sufficiently
"verified" to be a proper subject for the
court's consideration in framing its
sentence.
Nukapigak II, 576 P.2d at 983 (footnote omitted).
In answer to Nukapigak's contention, the supreme court
first stated that it agreed with the holding of the California
Supreme Court in People v. Chi Ko Wong, 557 P.2d 976, 993 (Cal.
1976), that "[a] defendant [who does] not exercise his right to
present any materials or call any witnesses to contradict,
explain or otherwise rebut materials in the [pre-sentence] report
[is] foreclosed from raising such issues". Nukapigak II, 576
P.2d at 984. The court declared, "In the absence of any real
indication that the information complained of might have been
inaccurate, we believe that the sentencing judge was entitled to
consider it; at least where, as here, that information, in and of
itself, appears minimally trustworthy." Id. The court explained
that "it is the defendant's obligation to comply with 'procedures
to establish the claimed unreliability of materials properly
submitted for sentencing purposes; a mere claim of invalidity is
insufficient.'" Id. (quoting Chi Ko Wong, 557 P.2d at 994).
Based on Nukapigak II, we reject Evan's contention that
Judge Curda could not consider K.E.'s hearsay statements unless
the State independently corroborated them. Under Nukapigak II,
the required verification for hearsay information at sentencing
can be found in "that information, in and of itself", unless the
defendant presents a "real indication" that the hearsay
information is inaccurate. Nukapigak II, 576 P.2d at 984. We
therefore uphold Judge Curda's finding that K.E.'s statements
concerning the episode giving rise to the charge against Evan
were "verified" for sentencing purposes.
This brings us to Evan's second argument _ his
contention that, once he requested the opportunity to cross-
examine K.E., Judge Curda could no longer rely on K.E.'s hearsay
statements even if they were verified. Evan acknowledges that
"the rules of evidence [are] relaxed at sentencing[,] allowing
the court to consider hearsay evidence". See Alaska Evidence
Rule 101(c)(2). Nevertheless, Evan asserts that "judges may rely
on verified hearsay information at sentencing ... only if the
defendant fails to assert his confrontation rights".
This, however, is a statement of the rule at trial, not
the rule at sentencing. At trial, hearsay evidence is admissible
unless the other party "assert[s] his confrontation rights" _
that is, objects to the hearsay. Cassell v. State, 645 P.2d 219,
221 (Alaska App. 1982). At sentencing, however, a defendant has
only a limited right of confrontation and the normal rules
against the admission of hearsay do not apply. See Evidence Rule
101(c)(2).
In Hamilton v. State, 771 P.2d 1358 (Alaska App. 1989),
this court recognized that criminal defendants have a conditional
right at sentencing to require the State to bring its witnesses
to court so that they may be cross-examined. Compare Williams v.
New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (a
criminal defendant's Sixth Amendment right of confrontation does
not extend to sentencing hearings). Under Hamilton, the State
must produce its sentencing witnesses (or prove their
unavailability and their credibility) if the defendant "denies
the allegations under oath and submits to cross-examination".
Hamilton, 771 P.2d at 1362.
Evan declined to deny K.E.'s allegations under oath.
He relies on a case decided prior to Hamilton: Pickens v. State,
675 P.2d 665 (Alaska App. 1984). In Pickens, this court
indicated that a defendant might challenge hearsay at sentencing
either by offering a testimonial denial or by demanding to cross-
examine the declarant. 675 P.2d at 671 ("Absent an express,
testimonial denial by Pickens of this incident or a specific
request to cross-examine the victim, consideration of this
verified incident of prior criminal conduct was proper.")
(Emphasis added.)
Evan notes that the defendant in Hamilton only offered
a testimonial denial and did not demand to cross-examine the
hearsay declarant. Hamilton, 771 P.2d at 1361. From this, Evan
argues that Hamilton must be confined to its facts and that the
language from Pickens expresses the true rule: that a defendant
can prevent the admission of hearsay evidence at sentencing
either by offering a testimonial denial or by simply asking to
cross-examine the out-of-court declarant.
Evan reads too much into the language used in Pickens.
Because the defendant in Pickens neither offered a testimonial
denial nor sought to cross-examine the hearsay declarant, it was
not necessary for this court to address the hearsay issue in a
substantive way. For the same reason, it was not necessary for
this court to decide whether either of these two courses of
action (testimonial denial or demand for cross-examination) was
individually sufficient to preclude the State's use of hearsay at
sentencing.
In contrast, Hamilton squarely addressed the issue of a
defendant's right to object to the use of hearsay at sentencing.
This court, citing Nukapigak, Pickens, and other Alaska cases,
noted that "[t]he appellate courts of this state [had previously]
considered similar arguments in a variety of cases" but had never
completely resolved the issue. Hamilton, 771 P.2d at 1361-62.
This court reviewed legal authority on a criminal defendant's
right of confrontation in various contexts. This court also
acknowledged the traditional willingness of state and federal
courts to allow sentencing judges to "consider verified
information adverse to a defendant even though it was based on
hearsay". Hamilton, 771 P.2d at 1362. Striking a balance
between these competing considerations, this court held in
Hamilton that, when a hearsay declarant is available to testify,
the State can not rely on hearsay evidence at sentencing "against
a defendant who denies the allegations under oath and submits to
cross-examination". Id.
The language of Nukapigak II indicates that there may
be other circumstances in which a defendant can properly object
to the government's use of hearsay at sentencing _ circumstances
in which, although the defendant does not personally take the
stand, the defense nevertheless "present[s] ... materials or
call[s] ... 'witnesses to contradict, explain or otherwise
rebut'" the government's hearsay, creating a "real indication
that the information complained of [may be] inaccurate".
Nukapigak II, 576 P.2d at 984 (in part quoting Chi Ko Wong, 557
P.2d at 993). However, a defendant can not preclude the use of
hearsay at sentencing by simply asserting that he or she wishes
to have the declarant brought to court.
This is the rule that Judge Curda applied in Evan's
case. Evan stated that he wished to cross-examine K.E., but he
chose not to present a testimonial denial of K.E.'s hearsay
statements, nor did Evan "present any materials or call any
witnesses to contradict, explain or otherwise rebut" K.E.'s
statements. Nukapigak II, 576 P.2d at 984. On appeal, Evan
attempts to explain his inaction by asserting that he was too
intoxicated to remember the episode at all, and that it would
therefore be "irrationality" to require him to affirmatively
explain or rebut K.E.'s account of those events. However, as the
supreme court stated in Nukapigak II, "[i]n the absence of any
real indication that the information complained of might have
been inaccurate, ... the sentencing judge [is] entitled to
consider it". 576 P.2d at 984. Judge Curda was therefore
entitled to consider K.E.'s hearsay statements at Evan's
sentencing.
We turn now to Evan's claim that his sentence is
excessive. As noted above, Judge Curda sentenced Evan to 4
years' imprisonment with 2 years suspended, or 2 years to serve.
Evan was a first-felony offender convicted of a class B
felony; his sentencing was therefore governed by the guidelines
this court established in State v. Jackson, 776 P.2d 320, 326-27
(Alaska App. 1989). In Jackson, this court declared that a
typical offender committing a typical to moderately aggravated
offense should receive between 1 and 4 years to serve. Evan's
sentence of 2 years to serve falls well within this benchmark
range.
Nevertheless, Evan argues that, because this court set
a range of from 1 to 4 years for a class of cases that runs the
gamut from "typical" to "moderately aggravated", Jackson must be
construed to mean that a typical offender committing a "typical"
class B felony should receive 1 year to serve, and that sentences
in excess of 1 year are reserved for offenders committing
aggravated offenses. According to Evan, a court can not sentence
a first-felony offender to more than 1 year to serve unless the
court affirmatively finds that the defendant's crime is
"aggravated".
We reject this reading of Jackson. Evan's
interpretation of Jackson would put it at odds with Austin v.
State, 627 P.2d 657 (Alaska App. 1981), the case this court
specifically relied on when establishing the 1- to 4-year
benchmark. See Jackson, 776 P.2d at 326.
In Austin, this court held that a first-felony offender
who was not subject to presumptive sentencing should receive a
more favorable sentence than the presumptive term of imprisonment
established by the legislature for second-felony offenders
convicted of the same offense unless the sentencing court found
that the defendant's case was exceptional, either because the
State had proved statutory aggravating factors or because of
extraordinary circumstances that would have warranted referring
the case to the three-judge sentencing panel (had the case been
governed by presumptive sentencing). Austin, 627 P.2d at 657-58;
see also Benboe v. State, 698 P.2d 1230, 1231 (Alaska App. 1985).
The presumptive term for second-felony offenders convicted of
class B felonies is 4 years' imprisonment. See AS
12.55.125(d)(1). Thus, under Austin, Judge Curda could sentence
Evan to up to 4 years to serve without making special findings.
Jackson was not intended to alter the Austin rule, but
rather to implement it. We therefore reject Evan's argument that
Jackson requires a sentencing court to find significant
aggravating factors before the court can impose a sentence of
more than 1 year to serve.
Evan challenges Judge Curda's finding that Evan's
offense was among the most serious within the definition of
second-degree sexual abuse of a minor. See AS 12.55.155(c)(10).
Judge Curda made this finding based on K.E.'s statements that,
shortly before Evan sexually abused her, he aided another man in
raping K.E. (by holding her down and removing her clothing). On
the basis of this evidence, Judge Curda found that Evan was
guilty of first-degree sexual assault, a more serious crime.
Evan asserts that Judge Curda had no authority to consider K.E.'s
hearsay statements. We have already decided this issue against
Evan; we therefore uphold Judge Curda's finding.
Evan next asserts that Judge Curda gave improper weight
to this aggravating factor. He correctly notes that proof of an
aggravating factor will not automatically justify a significant
increase in a defendant's sentence. Compare Juneby v. State, 641
P.2d 823, 833 (Alaska App. 1982), modified on other grounds, 665
P.2d 30 (Alaska App. 1983) (in cases governed by presumptive
sentencing, even when aggravating factors are proved, a
sentencing court should be cautious when making adjustments to
the prescribed presumptive term). Judge Curda specifically noted
this rule of law in his remarks at Evan's sentencing. Moreover,
even though Judge Curda concluded that Evan had committed a more
serious crime than the one he was convicted of, the judge
nevertheless sentenced Evan to a prison term within the lower
half of the Jackson benchmark range. Evan has not shown that
Judge Curda gave inordinate weight to this aggravating factor.
Evan also argues that Judge Curda gave insufficient
attention to Evan's potential for rehabilitation and, at the same
time, improperly stressed the sentencing goals of deterrence and
reaffirmation of societal norms. Judge Curda's sentencing
remarks show that he actively considered Evan's lack of prior
criminal record. Judge Curda also expressed his belief "that Mr.
Evan has probably been deterred [by the experience of] going
through this". However, Judge Curda found that Evan had
committed an atypically serious offense, first by helping a
friend to rape K.E., then by premeditatedly returning to K.E.
later and committing the act of sexual abuse for which he was
convicted. Based on these findings, Judge Curda assessed Evan's
potential for rehabilitation as "fair, and not exceptional".
A sentencing judge has substantial discretion when
evaluating the priority of the various sentencing goals and
assessing the weight they should receive under the facts of a
particular case. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska
1973). We have independently examined the record in this case,
and we conclude that Judge Curda did not abuse that discretion.
The judgement of the superior court is AFFIRMED.
