NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
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THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID L. CORNWALL, )
) Court of Appeals No. A-5381
Appellant, ) Trial Court No. 4FA-S93-920CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1438 - September 12, 1995]
Appellee. )
______________________________)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Jay Hodges,
Judge.
Appearances: William R. Satterberg,
Jr., Fairbanks, for Appellant. W.H. Hawley,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
David L. Cornwall entered a plea of no contest to one
count of sexual abuse of a minor in the second degree, in
violation of AS 11.41.436(a)(3). The offense is a class B
felony. AS 11.41.436(b). At the original sentencing hearing,
Superior Court Judge Jay Hodges initially sentenced Cornwall to a
term of six years with four years suspended. The following day,
Judge Hodges notified the parties that he had misspoken in
imposing Cornwall's sentence and had meant to impose a term of
six years with two years suspended, not six years with four years
suspended. After a further hearing, Judge Hodges determined that
Cornwall's sentence could properly be modified to effectuate the
originally intended sentence. Judge Hodges entered a modified
judgment sentencing Cornwall to six years with two years
suspended. Cornwall appeals, contending that the increased
sentence violates his right to protection against double
jeopardy. We reverse.
The applicable law is clear:
Once a sentence is meaningfully
imposed, the constitutional provisions
prohibiting double jeopardy bar the court
from increasing the sentence. Sonnier v.
State, 483 P.2d 1003, 1005 (Alaska 1971). A
sentence is meaningfully imposed when it is
legally imposed and not subject to change
under the Alaska Criminal Rules. Shagloak v.
State, 582 P.2d 1034, 1037 (Alaska 1978); see
also Dentler v. State, 661 P.2d 1098 (Alaska
App. 1983). The court in Shagloak held that
a sentence was not subject to change under
the criminal rules unless there existed "an
objectively ascertainable mistake--a mistake
which can be determined by contemporaneous
record evidence...." 582 P.2d at 1038.
Merry v. State, 752 P.2d 472, 474 (Alaska App. 1988).
An "objectively ascertainable" mistake occurs when the
contemporaneous record of the sentencing hearing reveals an
"obvious mistake[]" -- that is, when the sentence initially
imposed "obviously conflict[s] with the intention of the court"
and is not "logically possible," Shagloak v. State, 582 P.2d at
1038. Before a sentence may be deemed mistaken and increased,
the contempora-neous record must leave "no reasonable doubt as to
the intention of the sentencing court." Coates v. State, 721
P.2d 655, 657 (Alaska App. 1986)(quoting Chase v. State, 479 P.2d
337, 340 (Alaska 1971)).
In the present case, Cornwall, a first felony offender,
was not subject to presumptive sentencing. The offense for which
he was convicted, a class B felony, carried a second offense
presumptive term of four years. The sentencing court could not
exceed this term without formally finding statutory aggravating
factors or extraordinary circumstances warranting three-judge
panel referral. 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 alleged, and Judge Hodges found, four
aggravating factors. In imposing sentence, Judge Hodges noted
that Cornwall's prospects for rehabilitation appeared unusually
favorable but found that his conduct was exceptionally serious,
placing his case within the second benchmark category for first-
offense class B felonies. See State v. Jackson, 776 P.2d 320,
326 (Alaska App. 1989)("For an offense that is exceptionally
aggravated . . . a term of up to six years of unsuspended
incarceration . . . would be justified.") Judge Hodges sentenced
Cornwall as follows:
The court feels it is necessary to
impose a period of incarceration. The court
feels it is necessary to have some probation,
a suspended time with a substantial
probationary period. The court finds it is
necessary to require Mr. Cornwall to complete
a . . . sexual offender program as well as
aftercare when he's released from
incarceration. The court is going to impose
a period of six years and suspend four. He's
to be placed on probation for a period of
five years upon his release from custody. . .
. [T]he court will recommend that he be
incarcerated in the facility so that he may
participate in sex offender treatment.
The
following day,
Judge Hodges
realized that
he had
misspoken --
that he had
meant to
sentence
Cornwall to a
term of six
years with two
years
suspended. An
additional
hearing was
scheduled.
After allowing
the parties to
argue whether
the originally
imposed
sentence was
subject to
correction,
Judge Hodges
found that it
was:
In respect to the sentence, it was fully
the intent at the time of the sentence -- the
court's sentencing remarks with respect to
the aggravators and so forth would clearly
indicate objectively that it would not be a
four year suspended sentence. The court
misspoke when it said that and, therefore,
the court is going to impose a six year
sentence with two years suspended. The rest
of the conditions will remain the same.
On appeal, Cornwall argues that his increased sentence
was barred by double jeopardy. The state responds that the
contemporaneous record of the original sentencing hearing reveals
an objectively ascertainable mistake and that Cornwall's sentence
was therefore subject to correction. The state points to three
areas in which the court's mistake is objectively discernible.
First, the state argues that the sentencing court's
finding of four aggravating factors manifested its intention to
impose an unsuspended sentence equalling or exceeding the four-
year Austin limit. But the finding of aggravating factors
pursuant to Wylie merely made a sentence in excess of the Austin
limit permissible; it did not make such a sentence mandatory, or
even necessarily desirable. As in other sentencing contexts, the
existence of aggravating factors established under Wylie does not
automatically call for any particular sentencing adjustment.
Rather, the extent to which a sentence should actually be
affected by aggravating factors is a matter to be determined by
the sentencing court based on the totality of the circumstances
in each case. Particularly in light of the sentencing court's
findings concerning Cornwall's favorable prospects for
rehabilitation, its decision to impose a sentence of six years
with four years suspended was "logically possible" and did not
"obviously conflict" with its finding of four aggravating
factors.
Second, the state argues that Judge Hodges' placing of
Cornwall's case within the second benchmark sentencing category
of State v. Jackson evinced the court's intent to impose an
unsuspended term of four, rather than two years. Under Jackson's
second category, the court may, but is not required to, impose a
sentence of up to six years' unsuspended incarceration for an
exceptionally aggravated first offense class B felony. 776 P.2d
at 326. Before deciding upon a sentence, a judge who finds that
exceptionally aggravated conduct warrants classifying an
offender's case within the second Jackson benchmark must proceed
to consider the totality of the circumstances, including the
offender's potential for rehabilitation. Id. at 327. And in
balancing the totality of the circumstances, the court is
empowered with discretion to impose a sentence that falls well
below the ceiling for the second category benchmark. Again,
given Cornwall's prospects for rehabilitation, the sentencing
court's original decision to impose a term of six years with four
suspended does not obviously conflict with its decision to rank
the case, based on the seriousness of Cornwall's conduct, within
Jackson's second benchmark category.
Third, the state maintains that the sentencing court's
intent to impose a four-year unsuspended term is plain in light
of its recommendation that Cornwall receive sexual offender
treatment while incarcerated. The state points to evidence in
the sentencing record indicating that sexual offenders cannot be
classified to the Hiland Mountain sexual offender treatment
program unless they receive at least four years of unsuspended
incarceration. But the record on this score is decidedly
ambiguous, for Judge Hodges did not order or recommend that
Cornwall be classified to the Hiland Mountain program.
Cornwall's psychologist, Lawrence Gooding, testified
that the Hiland Mountain treatment program might in theory be the
best prison program for Cornwall's treatment needs, but expressed
reservations about whether Cornwall could ever actually
participate in the program's group treatment setting, since
Cornwall had been an Alaska State Trooper. Implicit in Gooding's
testimony is the suggestion that other treatment options were
available and might be preferable. Notably, the sentencing
court did not order Cornwall to participate in any particular
treatment program; indeed, the court did not unequivocally
specify whether Cornwall was required to pursue treatment while
incarcerated.1 Under the circumstances, the sentencing court's
treatment recommendation did not clearly demonstrate its intent
to sentence Cornwall to an unsuspended four-year term.
The contemporaneous record thus reveals no
irreconcilable inconsistencies or obvious anomalies. Cornwall's
sentence, as originally imposed, was neither impermissible nor
irrational: it was "logically possible." Shagloak, 582 P.2d at
1038. A reasonable person, fully informed of the background of
the case and the applicable law, but reviewing the
contemporaneous record objectively and without the benefit of the
sentencing court's subsequent explanation of its subjective
purpose, could certainly entertain a reasonable doubt as to
whether the court misspoke in imposing a term of six years with
four years suspended. Although the circumstances relied on by
the state, viewed in retrospect, provide strong evidence to
corroborate the sentencing court's explanation of its original
intention, they do not, standing apart from the court's
explanation, reveal an "objectively ascertainable mistake." Id.
In short, Cornwall's original sentence was lawfully
imposed; once lawfully imposed, it could not later be increased.
"[T]he Constitution was designed as much to prevent the criminal
from being twice punished for the same offense as from being
twice tried for it." Ex parte Lange, 85 U.S. (18 Wall.) 163, 173
(1874), quoted in Sonnier v. State, 483 P.2d 1003, 1004 (Alaska
1971).
The corrected judgment is VACATED. This case is
REMANDED with directions to reinstate the original judgment.
_______________________________
1. In relevant part, Judge Hodges stated that he found it
necessary "to require Mr. Cornwall to complete . . . a sexual
offender program as well as aftercare when he's released from
incarceration."
