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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL J. REESE, )
) Court of Appeals No. A-6153
Appellant, ) Trial Court No. 3AN-95-2817 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1510 - December 27, 1996]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Rich Curtner, Assistant Public
Defender, and John B. Salemi, Public Defender,
Anchorage, for Appellant. Susan Wibker,
Assistant District Attorney, Kenneth J.
Goldman, District Attorney, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Michael T. Reese received a composite sentence of 6 years
to serve for the two crimes of second-degree sexual abuse of a
minor, AS 11.41.436(a), and fourth-degree misconduct involving a
controlled substance (possession of cocaine), AS 11.71.040(a).
Reese contends that this sentence is excessive. Reese also contends
that the sentencing judge should have alerted him, before imposing
sentence, that the judge intended to impose a sentence more severe
than 4 years to serve. We conclude that Reese was on sufficient
notice that he might receive more than 4 years to serve, and we
further conclude that Reese's sentence is not clearly mistaken.
On March 9, 1995, thirteen-year-old P.S. was spending the
night at the home of G.T., a friend of hers. Michael Reese, G.T.'s
cousin, came by the house. Reese began touching P.S. and putting
his hands down her pants. Reese then pulled down P.S.'s pants and
raped her both genitally and anally. Following this assault, Reese
warned P.S. that if she told anyone what had happened, he would kill
her. Reese then left the apartment. Despite this threat, P.S.
reported the rape soon after Reese left. The police were summoned,
and Reese was arrested a short time later. During the arrest, the
police found a small quantity of cocaine on Reese's person.
Reese denied having sexual intercourse with P.S..
However, a medical examination showed that P.S. had a bruised vulva
and tears to her vagina and her rectum.
Reese was indicted on two counts of first-degree sexual
assault (separate counts for unconsented-to vaginal and anal
penetration), as well as alternative counts of second-degree sexual
abuse of a minor (because P.S. was thirteen years old).
Additionally, Reese was indicted for possession of cocaine.
Reese ultimately agreed to plead no contest to the cocaine
charge and to a single count of second-degree sexual abuse of a
minor. Reese also conceded aggravating factor AS 12.55.155(c)(10)
þ that his conduct was among the most serious within the definition
of second-degree sexual abuse of a minor þ because he sexually
penetrated the victim both genitally and anally (this conduct would
support two separate convictions, see Yearty v. State, 805 P.2d 987,
993-94 (Alaska App. 1991)), and because the victim sustained
injuries to her genitals and her rectum.
At the sentencing hearing, Reese did not contest the
assertions in the pre-sentence report (1) that P.S. had not
consented to the sexual penetration and (2) that Reese had
threatened to kill P.S. if she revealed the sexual assault. P.S.
told the court that she was a virgin when Reese raped her and that
the assault had seriously affected her life. For a long time, she
was unable to eat or to sleep through the night. She lost 30
pounds, she failed a grade in school, and she is fearful of boys.
Reese was a first felony offender. Second-degree sexual
abuse of a minor is a class B felony; the presumptive term for a
second felony offender convicted of this offense is 4 years'
imprisonment. AS 11.41.436(b); AS 12.55.125(d)(1). Fourth-degree
controlled substance misconduct is a class C felony; the presumptive
term for a second felony offender is 2 years' imprisonment. AS 11.-
71.040(d); AS 12.55.125(e)(1).
At Reese's sentencing, the State asked the court to impose
a composite term of 4 years to serve for Reese's two crimes.
Reese's attorney, citing Reese's young age (17), asked for a more
favorable sentence because Reese was "still in [his] formative
years". Notwithstanding these two recommendations, Superior Court
Judge Milton M. Souter concluded that even a 4-year sentence was
insufficient to satisfy the Chaney criteria. See State v. Chaney,
477 P.2d 441, 443-44 (Alaska 1970).
Judge Souter noted that Reese had penetrated P.S. against
her will, both vaginally and anally, and that P.S. had suffered
physical injury to both her genitals and her rectum. Moreover,
Reese threatened to kill P.S. if she told anyone about the assault.
Judge Souter declared that Reese's offense was "extremely
aggravated". The judge added:
[I]t's hard for me to imagine a much more
aggravated situation than that. This would be
an aggravated first-degree [sexual] assault
against a minor. ... For whatever reasons,
this was bargained down by the State and the
defense to sexual [abuse of] a minor in the
second-degree. But it is extraordinarily
aggravated.
Judge Souter concluded that the sentencing goals of deterrence and
reaffirmation of community norms called for a sentence above the 4-
year term requested by the State. He sentenced Reese to 8« years
with 3 years suspended on the second-degree sexual abuse charge, and
to a consecutive 6 months to serve on the cocaine charge. Thus,
Reese received a composite sentence of 6 years to serve, with an
additional 3 years suspended.
Our analysis of this sentence must begin with State v.
Jackson, 776 P.2d 320, 326-27 (Alaska App. 1989), in which this
court established benchmark sentencing ranges for first felony
offenders convicted of class B felonies. Under the Jackson
benchmarks, a first offender who commits a typical to moderately
aggravated class B felony should normally be sentenced to serve
between 1 and 4 years in prison. Sentences like Reese's (6 years
to serve) should be imposed only for exceptionally aggravated
offenses þ those involving "significant [statutory] aggravating
factors or other extraordinarily aggravated circumstances".
Jackson, 776 P.2d at 326.
Judge Souter found (and Reese does not contest) that
Reese's conduct amounted to two separate first-degree sexual
assaults (two different types of nonconsensual sexual penetration)
that were committed upon a thirteen-year-old victim with no prior
sexual experience. The victim suffered physical injuries during the
assaults, and she was threatened with death immediately after the
assaults. The sentencing record also shows that the victim suffered
substantial emotional harm from her experience. This record
supports Judge Souter's conclusion that Reese's offense would be
characterized as aggravated even if he had been convicted of first-
degree sexual assault, an unclassified felony with an 8-year
presumptive term for first felony offenders. See AS 11.41.410(b);
AS 12.55.125(i)(1).
The fact that Reese's crime would be aggravated even if
he had been convicted of an unclassified felony distinguishes
Reese's case from Benboe v. State, 698 P.2d 1230 (Alaska App. 1985).
In Benboe, the defendant was convicted of second-degree sexual
assault (nonconsensual sexual contact), but the sentencing judge
found the case to be aggravated because Benboe had penetrated the
victim and had therefore actually committed the higher degree of
sexual assault. For this reason, the judge sentenced Benboe to
serve 7 years. Id. at 1231. This court reversed because, if Benboe
had been convicted of first-degree sexual assault, his offense would
have been a mitigated first-degree sexual assault under the facts:
[Benboe's] assault was unplanned and was of
extremely brief duration. At most, the assault
involved only slight digital penetration.
Benboe never threatened [his victim], and he
voluntarily terminated the assault as soon as
[the victim] protested. Only relatively slight
physical injury was caused by Benboe's conduct,
and evidently [the victim] suffered no lasting
emotional harm.
Benboe, 689 P.2d at 1232 (footnote omitted).
Comparing the circumstances of Reese's case to this
description of the facts in Benboe, it is evident that Reese's
assault on P.S. was a significantly more serious offense, and that
Reese's offense would be deemed aggravated even if Reese had been
convicted of first-degree sexual assault. We therefore conclude
that Judge Souter was not clearly mistaken when he categorized
Reese's offense as "exceptionally aggravated" for purposes of the
Jackson benchmarks and when he sentenced Reese to a composite term
of 6 years to serve.
In his brief to this court, Reese argues that Judge Souter
was constrained to sentence him to less than 4 years' imprisonment
þ the normal ceiling under Austin v. State, 627 P.2d 657, 657-58
(Alaska App. 1981) þ unless the judge found by "clear and convincing
evidence" that a more severe sentence was necessary. This argument
confuses the two functions of a judge at sentencing: fact-finding,
and exercise of sentencing discretion. The "clear and convincing
evidence" standard governs a sentencing judge's findings regarding
aggravating and mitigating factors under AS 12.55.155 and
extraordinary circumstances under AS 12.55.165. Lepley v. State,
807 P.2d 1095, 1099 n.1 (Alaska App. 1991). However, when the judge
determines the appropriate sentence under the facts of the case,
this is an exercise of sentencing discretion. The judge need not
have "clear and convincing" reasons for imposing a particular
sentence. Rather, there is a range of reasonable sentences that
will be affirmed under Alaska's standard for sentence review, the
"clearly mistaken" test. State v. Bumpus, 820 P.2d 298, 305 (Alaska
1991); McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Lepley,
supra.
Reese also argues that Judge Souter was obliged to notify
him in advance if the judge was contemplating imposing a sentence
of 4 years or more to serve (the presumptive term for a second
felony offender). Reese relies on Wylie v. State, 797 P.2d 651, 662
(Alaska App. 1990). In Wylie, the defendant was sentenced to a term
of imprisonment exceeding the Austin ceiling. However, the State
had failed to allege aggravating factors or extraordinary circum-
stances, and thus the defendant was not on notice that a sentence
above the normal Austin limit might be imposed. Rather, it was the
sentencing judge who, based on the prosecutor's sentencing argument,
found aggravating factors. This court held that a defendant is
entitled to advance notice when the sentencing judge believes that
a sentence above the normal Austin limit should be imposed based on
aggravating factors or extraordinary circumstances that have not
been raised by the State.
The decision in Wylie was premised on the sentencing rule
first announced in Austin, later interpreted in Brezenoff v. State,
658 P.2d 1359, 1362 (Alaska App. 1983), and now codified in AS 12.-
55.125(k): a first felony offender must receive a term of imprison-
ment more favorable than the presumptive term for a second felony
offender unless the sentencing court finds statutory aggravating
factors or extraordinary circumstances. If no such factors are
alleged, then defendants can properly anticipate that their sentence
will not exceed the normal Austin ceiling. Thus, before a judge
relies on an aggravating factor that has not been raised in advance
of sentencing, the defendant must be given notice and a fair
opportunity to respond. But see Collins v. State, 816 P.2d 1383,
1384-85 (Alaska App. 1991) (a defendant who voices no objection to
the court's consideration of a newly-raised aggravator can not
thereafter complain).
In the negotiations leading up to the plea bargain in the
present case, Reese rejected the State's offer of a predetermined
sentence and instead bargained for open sentencing. At the same
time, Reese stipulated to the existence of aggravator (c)(10).
Under Brezenoff, the existence of this aggravator meant that Judge
Souter was authorized to consider sentences of 4 years or more to
serve. Reese was therefore on notice that his sentence could
potentially exceed the normal Austin ceiling.
Reese points out that, despite Reese's concession of
aggravator (c)(10), the State sought a sentence of only 4 years to
serve. However, when Reese agreed to open sentencing, he assumed
the risk that the sentencing judge might view the case differently
from the prosecutor.
Reese cites a passage from our opinion in Lewis v. State,
845 P.2d 447 (Alaska App. 1993), where we remanded a case for
resentencing because the defendant had received a sentence above the
normal Austin ceiling even though the sentencing court had found no
aggravating factors:
Because the sentencing court exceeded the
normal Austin limit without the requisite
finding that Lewis' case was exceptional, we
must remand for resentencing. Upon remand, if
the state seeks or the court contemplates the
imposition of a sentence exceeding the
applicable Austin limit, Lewis should be given
advance notice of that fact, as well as notice
of the proposed aggravating factors or
extraordinary circumstances to be relied on.
Lewis, 845 P.2d at 448 (emphasis as it appears in Reese's brief).
Reese interprets this passage as establishing a new gloss
on Wylie: that even though the defendant is aware that the State
(or the sentencing judge) has proposed aggravating factors or
extraordinary circumstances, the defendant is entitled to an
additional special notice that the judge is actively contemplating
a sentence above the normal Austin ceiling. However, Reese's
suggested interpretation of Lewis and Wylie is again based on a
confusion of the two functions of a judge at sentencing: fact-
finding, and exercise of sentencing discretion.
Under Brezenoff and under AS 12.55.025(k), a sentencing
judge's authority to exceed the normal Austin ceiling depends on
particular findings: the Austin ceiling can be exceeded if the
judge finds either aggravating factors or extraordinary
circumstances. As explained above, the existence of aggravating
factors and extraordinary circumstances are questions of fact.
Lepley, 807 P.2d at 1099 n.1.
Typically, the State initiates the discussion of aggrava-
ting factors and aggravating extraordinary circumstances. To ensure
that a defendant has a fair opportunity to litigate these questions
of fact, both AS 12.55.155(f) and Alaska Criminal Rule 32.1(c)
oblige the State to give the defendant advance notice if the State
intends to prove aggravating factors or extraordinary circumstances.
However, a sentencing judge also has the authority
(indeed, is under a duty) to raise aggravating and mitigating
factors if it appears that the parties have overlooked applicable
factors. Hartley v. State, 653 P.2d 1052, 1056 (Alaska App. 1982).
Because the sentencing judge can raise aggravating and mitigating
factors sua sponte, this court held in Wylie that the sentencing
judge must give the parties advance notice of these contemplated
sentencing factors. With regard to aggravating factors, the Wylie
requirement serves the same purpose as AS 12.55.155(f) and Criminal
Rule 32.1(c): it ensures that the defendant has a fair opportunity
to litigate the questions of fact that will affect the sentencing.
Thus, the Wylie notice requirement was intended to advance
and protect the fairness of the fact-finding process at sentencing.
Wylie did not, however, create a new rule to govern the judge's
exercise of sentencing discretion upon completion of the fact-
finding process. In particular, we reject Reese's suggestion that
Wylie was intended to give either the State or the defendant an
extra opportunity to present sentencing arguments.
Once the sentencing judge has ruled on the aggravating and
mitigating factors, the parties know the range of sentences that
might be imposed, and they can frame their sentencing arguments
accordingly. Unless the court has accepted a plea bargain that
involves a binding sentence recommendation, there is no procedural
unfairness in asking the parties to anticipate that the judge may
be contemplating a sentence that exceeds the prosecutor's recommen-
dation or that falls below the defense attorney's recommendation.
Likewise, when aggravating factors have been proved, there is no
procedural unfairness in asking the defendant to anticipate that the
judge may be contemplating a sentence that exceeds the normal Austin
ceiling.
The sentencing decision of the superior court is AFFIRMED.
