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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SABABU O. HODARI, )
) Court of Appeals No. A-6470
Appellant, ) Trial Court No. 3AN-S95-2525CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1577 - March 6, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Elaine M. Andrews, Judge.
Appearances: James Wendt, Assistant Public
Advocate, and Brant McGee, Public Advocate, Anchorage, for
Appellant. Roger B. Rom, Assistant District Attorney, Susan A.
Parkes, District Attorney, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Sababu O. Hodari was convicted, based upon his plea of
nolo contendere, of two counts of sexual assault in the first
degree, an unclassified felony with a maximum sentence of thirty
years of imprisonment, robbery in the first degree, a class A
felony, and assault in the second degree, a class B felony. AS
11.41.410(a)(1); AS 11.41.500(a)(1),(2); AS 11.41.210(a)(1).
Superior Court Judge Elaine M. Andrews sentenced Hodari to a
composite sentence of fifty-five years of imprisonment. Hodari
appeals, arguing that the sentence is excessive. We conclude the
sentence is excessive and remand for imposition of a composite
sentence of forty years of imprisonment.
On April 12, 1995, E.O., her eighteen-year-old daughter,
T.S., and her fourteen-year-old son, J.S., were at home in their
trailer in Anchorage. E.O. and T.S. were asleep in their rooms,
J.S. was awake playing video games. J.S. heard a knock on the
door. When he went to open the door, four male adults forced the
door open. Each man had a hand gun. The men started to beat J.S.
with their fists, feet, and guns. One of them hit J.S. with a
microwave oven. The men kept asking J.S., "Where's the money?"
T.S., who was eight and one-half months pregnant, came
out of the bedroom. The men forced her onto her knees yelling,
"Where's your mom?" "Where's the money?" They dragged T.S. down
the hall to a back room and sexually assaulted her. One of the men
repeatedly put his fingers in her vagina and then his penis. In
addition, Hodari put a barrel of a hand gun in her vagina.
Although T.S. cried out, "My baby, my baby, I'm pregnant," the men
repeatedly hit her and kicked her in the stomach. One of the men
hit her on the head with a gun. T.S. identified Hodari as the man
who hit her on the head with a gun and stated Hodari kicked her in
the stomach at least once and put the gun in her vagina.
One of the men hit E.O. in the face to wake her up. They
then continued to hit E.O. with their hands and guns and then hit
her with drawers from furniture in the room. Two of the men forced
E.O. to perform fellatio on them. The men demanded that E.O. tell
them where "the money" was located. She told them that it was in
a safe in the trailer. The men took the safe, which contained
$7000 in cash and some jewelry, along with a stereo and some car
tire rims. Before they left, the men told E.O. that if she called
the police, "we['re going to] come back and kill you all."
However, after E.O. saw the men drive away, in spite of being
severely beaten, E.O. had her children get in the car and managed
to contact a police officer who led her to the hospital.
E.O. was completely battered about her body. She had to
remain in the hospital for a couple of days. T.S. was also
severely bruised and suffered abrasions over many parts of her
body. J.S. was also bruised and beaten and was treated for a cut
on the head which required stitches.
In sentencing Hodari, Judge Andrews pointed out that
Hodari was twenty-three years old at the time of the offense and
that Hodari had "a significant juvenile record." Hodari had two
prior felony convictions. In 1992, Hodari was convicted of
misconduct involving a controlled substance in the fourth degree,
a class C felony. He was sentenced to two years with one year
suspended, and placed on probation for a period of five years. On
July 26, 1995, Hodari was convicted of misconduct involving a
controlled substance in the third degree, a class B felony, and was
sentenced to six years of imprisonment. [Fn. 1] Judge Andrews
pointed out that Hodari had a "terrible record on probation," had
numerous misdemeanor convictions, and that Hodari committed the
present offense while he was on probation. She concluded that "its
pretty clear [Hodari is] not going to do anything he doesn't want
to do, probation or no probation, parole or no parole, court orders
or no court orders." She noted that Hodari had continued his
refusal to abide by any rules by accumulating a remarkable record
of non-compliance with prison regulations.
Judge Andrews then discussed Hodari's offenses under
sentencing guidelines which we set out in Williams v. State, 800
P.2d 955 (Alaska App. 1990), on rehearing, 809 P.2d 931 (Alaska
App. 1991). Williams forced an eleven-year-old paper boy into his
car, demanding money. After the boy answered that he did not have
any money, Williams forced his head down and drove him several
blocks away. Id. at 957. Williams then sexually assaulted the boy
by anally raping him twice and forcing him to commit fellatio.
Williams released the boy after the assault, threatening to kill
him if he reported the offense. Williams was convicted of one
count of kidnapping and three counts of sexual abuse of a minor in
the first degree. Id. at 956. [Fn. 2] Williams had one prior
felony conviction for selling a half-ounce of cocaine; Williams
received a suspended imposition of sentence and was on probation
when he committed the assault. Id. at 957. He also had two prior
misdemeanor convictions. Id.
In Williams, we analyzed cases which this court and the
Alaska Supreme Court had reviewed, of offenders convicted of both
kidnapping and sexual assault. We recognize, as did Judge Andrews,
that Hodari was never convicted of kidnapping. However, she found
that Hodari had committed a technical kidnapping and that the
Williams guidelines were the relevant guidelines to apply in
sentencing Hodari. We agree with this analysis. [Fn. 3] In
Williams, we summarized the prior sentencing decisions as follows:
These decisions indicate that an
aggregate term of twenty years or less will normally be appropriate
for a first felony offender in a kidnap/rape case; a longer
sentence will be warranted only when the kidnapping is aggravated
in its own right, either because of its duration or because the
defendant actually placed the victim's life in jeopardy by means of
the abduction.
A second category of kidnap/rape cases
that this court and the Alaska Supreme Court has considered
involves offenders who have had at least one prior felony
conviction but whose criminal history was not extensive enough to
qualify them as dangerous offenders.
All of the cases in this category
involved aggravated sexual assaults assaults that included
significant violence and physical injury, multiple acts of rape, or
both. Nevertheless, none of the cases has upheld a composite
sentence of more than thirty years. . . . These precedents firmly
establish thirty years as the maximum composite sentence that
should ordinarily be imposed in kidnap/rape cases involving
offenders who have one or more prior felony convictions but whose
criminal history does not place them in the dangerous offender
category.[ [Fn. 4]]
Only a handful of decisions in
kidnap/rape cases have approved composite sentences of more than
thirty years. Without exception, those cases have involved
kidnappings of prolonged duration or offenders whose prior criminal
histories established them as persistent, violent criminals[.]
(Citations and footnotes omitted.) Further, we explained:
Except in cases involving murder or attempted
murder, we have approved composite terms of forty years or more
only for violent crimes committed by offenders with backgrounds
that included habitual criminality or repeated acts of serious
violence.
Id. at 960 n.6 (citations omitted).
We concluded that Williams' case was similar to those cases where
offenders had been sentenced to a maximum composite sentence of
thirty years of imprisonment. We concluded that the age of
Williams' eleven-year-old victim was an aggravating circumstance
which allowed the trial court to place Williams in the same
category as offenders who had used weapons in committing their
offenses and also justified a ten-year period of probation in
addition to the thirty years of imprisonment. Id. at 961.
Judge Andrews gave several reasons why she found that the
facts of Hodari's case deserved a more severe sentence than the
sentence which Williams received. She found that Hodari was a
leader of the group. He had been the instigator of the offense and
had directed the others during the offense. Williams had acted
alone. She noted that Hodari had committed a burglary by forcibly
entering a home in the middle of the night; Williams had not
committed a burglary. Hodari, unlike Williams, used a weapon. She
found that the facts of the kidnapping offense in both cases were
similar. Hodari had committed a technical kidnapping and Williams
had committed a minimal kidnapping offense. She found that Hodari
had engaged in "exceptional gratuitous violence" to the victims and
their property; Williams had not engaged in gratuitous violence.
She found that Hodari had a more serious criminal record than
Williams. She found that Hodari, unlike Williams, was a "dangerous
offender" as we defined that term in Williams. She concluded that
these differences made Hodari's case more aggravated than Williams'
and would support a sentence of fifty-five years of imprisonment.
We find Judge Andrews' analysis is persuasive that
Hodari's case is more aggravated than Williams' and deserving of a
more severe sentence. However, we do not believe that we can
approve a sentence for Hodari of greater than forty years of
imprisonment. As we have previously stated, "we have approved
composite terms of forty years or more only for violent crimes
committed by offenders with backgrounds that included habitual
criminality or repeated acts of serious violence." Williams, 800
P.2d at 960 n.6. The cases which we cited for this proposition,
Hancock v. State, 741 P.2d 1210 (Alaska App. 1987), Wortham v.
State, 689 P.2d 1133 (Alaska App. 1984), Larson v. State, 688 P.2d
592 (Alaska App. 1984), and Nix v. State, 653 P.2d 1093 (Alaska
App. 1982), all involved very serious offenses committed by
dangerous offenders. Williams, 800 P.2d at 960 n.6. A review of
these cases shows that we did not approve composite sentences in
excess of forty years of imprisonment except in Wortham. Wortham
is distinguishable because Wortham was an older offender who had
kidnapped and intentionally shot his victim. Wortham had five
prior felony convictions for which he had previously served
substantial terms of imprisonment, had just been released from
serving a substantial term of imprisonment, and was on parole at
the time of the offenses. Wortham, 689 P.2d at 1144. Hodari's
case is clearly not as aggravated as Wortham. His case fits within
the cases where offenders have received a maximum sentence of forty
years of imprisonment. We therefore conclude that a sentence of
greater than forty years of imprisonment is excessive. We conclude
that the fifty-five year sentence which Judge Andrews imposed is
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974). We remand to the trial court with directions to impose a
sentence not to exceed forty years of imprisonment. [Fn. 5]
REMANDED.
FOOTNOTES
Footnote 1:
Because Hodari had not been sentenced on this felony at the
time he committed the present offense, this offense did not
constitute a prior felony conviction for purposes of presumptive
sentencing. Sawyer v. State, 663 P.2d 230 (Alaska App. 1983).
Therefore, Hodari was subject to presumptive sentencing as a second
felony offender.
Footnote 2:
Both these offenses are unclassified felonies. Kidnapping is
punishable by a maximum term of ninety-nine years of imprisonment.
Sexual abuse of a minor in the first degree is punishable by a
maximum term of thirty years of imprisonment.
Footnote 3:
Kidnapping occurs when a "person restrains another with the
intent to . . . inflict physical injury upon or sexually assault
the restrained person or place the restrained or a third person in
apprehension that any person will be subjected to serious physical
injury or sexual assault[.]" AS 11.41.300(a)(1)(C). However
restraint which is merely incidental to a sexual assault or robbery
does not turn the sexual assault or robbery into a kidnapping.
Kidnapping occurs when there is significant confinement or movement
of the victim of the sexual assault or robbery beyond that
necessary to commit the offense. Alam v. State, 776 P.2d 345, 349
(Alaska App. 1989). In the instant case, we conclude Judge Andrews
did not err in determining that Hodari had committed a "technical
kidnap" in the restraint which he exercised over the victims'
movements.
Footnote 4:
In Williams, 800 P.2d at 959 n. 5, we defined "dangerous
offender" as follows:
The term "dangerous offender" in this context
refers to a person who meets the criteria for a "habitual offender"
specified in Standard 18-4.4(c) of the A.B.A. Standards for
Criminal Justice that is, one who has been convicted of at least
two prior felonies committed on different occasions within five
years of the most recent offense and who has previously served a
sentence in excess of one year. See III Standards for Criminal
Justice sec. 18-4.4(c) (1982); Skrepich v. State, 740 P.2d 950
(Alaska App. 1987).
Footnote 5:
Hodari contends that Judge Andrews erred in playing the
testimony of E.O. which E.O. gave at the trial of Hodari's co-
defendants. However, Hodari never objected to the playing of this
testimony and must therefore establish plain error. Alaska
Criminal Rule 47(b). We do not find plain error. Even at trial,
hearsay is admissible absent an objection. Cassell v. State, 645
P.2d 219, 220-21 (Alaska App. 1982). Hodari also contends that
Judge Andrews erred in rejecting a plea agreement which Hodari had
with the district attorney's office where the parties agreed that
the court should impose a sentence of twenty-five years of
imprisonment. However Judge Andrews was under no obligation to
accept the plea agreement. Alaska Criminal Rule 11(e). When Judge
Andrews rejected the plea agreement, Hodari's remedy was to
withdraw from the plea agreement. Alaska R. Crim. P. 11 (e)(3).
Hodari chose to enter a plea and face open sentencing. By entering
his plea, Hodari waived all non-jurisdictional issues. Cooksey v.
State, 524 P.2d 1251, 1255 (Alaska 1974). In short, Judge Andrews'
action in refusing the plea agreement is authorized by Alaska
Criminal Rule 11(e)(3) and Hodari waived any claim that he might
have by entering his nolo contendere plea.
