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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PETER KRACK, )
) Court of Appeals No. A-6783
Appellant, ) Trial Court No. 3DI-S97-09CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1616 - January 15, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Elaine M. Andrews, Judge.
Appearances: Christine S. Schleuss, Suddock
& Schleuss, P.C., Anchorage, 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: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
Peter Krack is a pharmacist and a pederast. Combining his
easy access to drugs with cash and presents, he preyed on a
generation of boys. Pursuant to a bargain with the State, Krack
pleaded no contest to a representative group of charges covering
both his misconduct with controlled substances and his sexual abuse
of minors. Krack argues that his composite 28-year term to serve
is excessive. Because we are not convinced that his term to serve
is clearly mistaken, we affirm.
Facts and proceedings
Krack graduated from the University of New Mexico in 1975
with a degree in pharmacology. He worked in Cuba, New Mexico, as
a pharmacist until 1983. He left after an investigation by the New
Mexico State Police into his conduct with boys. During an interview
with the New Mexico State Police, Krack admitted that he had
performed fellatio on five boys. The police interviewed three of
those five, and each of the three reported that Krack had paid money
for each act of fellatio. In his interview Krack said, "from what
I've read on this, that the majority of the harm to the boys doesn't
come from anything that I might have done, but from the way the
parents and authorities tend to react to it." Krack expressed a
desire to get professional help. After his conduct was discovered,
family members of Krack's victims physically assaulted him.
The New Mexico authorities reacted by placing Krack on
"Pre-prosecution Diversion." The terms of his Diversion required
that Krack leave New Mexico. He left and moved to Dillingham,
Alaska, to become a pharmacist at Kanakanak Hospital.
Shortly after he settled in Dillingham, Krack began the
same conduct that was discovered by the authorities in New Mexico.
Over the next fourteen years, he sought out boys with whom he had
gained a measure of trust. Twenty-six victims from Dillingham were
discovered during the investigation. Krack's method of seduction
with each victim was similar. He would start by inviting a boy to
his house, often with other victims already present. He would
provide the boy with access to sexually explicit material and
encourage sexual activity; he would offer his victims money to
engage in sexual conduct with him; he would obtain drugs from the
pharmacy that he would abuse himself and that he would give to his
victims; he engaged in any sexual conduct with his victims that he
could, but if he could convince them, he would engage in fellatio
and anal intercourse.
The police began an investigation of Krack's sexual and
drug misconduct after 17-year-old M.C., who the police were
interviewing about a firearm that had been stolen from Krack's
residence, described Krack's sexual and drug activity with boys in
Dillingham. The police arranged for a Glass [Fn. 1] warrant and
monitored the conversation between Krack and R.N., which showed
Krack's willingness to engage in sexual misconduct. Krack was
arrested shortly thereafter. In the jacket he wore when he was
arrested, Krack had a pill bottle containing narcotics, stimulants,
and anti-anxiety pills. During the execution of a search warrant
on Krack's residence, the police discovered over a thousand pills
of over twenty different types of drugs, a couple of mostly empty
bottles of pharmaceutical cocaine, and some hypodermic needles.
Included among the pills were Dilaudid, morphine, codeine, and
Dexedrine. Two of Krack's victims have committed suicide: A.V. in
New Mexico in 1994 and V.L. in Dillingham in 1997, a couple of days
after he was contacted during the investigation.
In three different presentations to the grand jury in
January and February of 1997, the grand jury indicted Krack on 60
different counts: fourteen counts of misconduct involving
controlled substances in the first degree, [Fn. 2] seven counts of
misconduct involving controlled substances in the fourth degree,
[Fn. 3] one count of sexual abuse of a minor in the first degree,
[Fn. 4] twenty-nine counts of sexual abuse of a minor in the second
degree, [Fn. 5] three counts of attempted sexual abuse of a minor
in the second degree, [Fn. 6] and six counts of sexual abuse of a
minor in the third degree. [Fn. 7]
On April 1, 1997, pursuant to a plea agreement with the
State, Krack entered a no contest plea to an information charging
seven counts: one count of first-degree misconduct involving a
controlled substance; one count of fourth-degree misconduct
involving a controlled substance; three counts of second-degree
sexual abuse of a minor; and two counts of third-degree sexual abuse
of a minor. The only restriction on Krack's sentence in the plea
agreement was that no more than 15 years to serve could be imposed
on the first-degree drug misconduct charge. The prosecution also
agreed not to file any more charges against Krack for offenses that
occurred while he was employed at Kanakanak Hospital and agreed to
cease its investigation of Krack's drug diversions.
In count I, Krack was charged with possessing the
amphetamine that was among the pills he had in a small bottle in the
coat he asked to wear to jail when he was arrested.
In count II, Krack was charged with performing fellatio
on 15-year-old R.N. in April of 1996. According to R.N., a couple
of his friends first brought him to Krack's house around March of
1996. He returned frequently and would look at Krack's sexually
explicit magazines and movies. Krack bet R.N. a hundred dollars
that his penis was not longer than 6 inches. When R.N. exposed his
penis, Krack paid him $100. During later visits, Krack masturbated
in front of R.N. and convinced R.N. to masturbate in front of him.
They began masturbating each other. Krack began performing fellatio
on R.N. and convinced R.N. to perform fellatio on him. R.N.
reported that sometime in the fall of 1996, Krack paid him $200 to
have anal intercourse. R.N. reported that Krack had also supplied
him and other boys with drugs.
On January 15, 1997, R.N. assisted the police in the
service of the Glass warrant. He wore a wire and went to Krack's
house. Krack asked that R.N. bring a third boy over for group sex.
Krack brought out a blow-up doll that they both used as a sex aid.
Krack fondled R.N.'s genitals and asked R.N. to place R.N.'s penis
in Krack's mouth, but R.N. declined and left.
In count III, Krack was charged with performing fellatio
on 14-year-old J.B. in the spring of 1996. J.B. reported that he
was introduced to Krack in the summer of 1995 by another boy. He
would visit Krack's residence frequently. Krack started paying him
money to masturbate in front of Krack. Later, Krack would
masturbate and fellate J.B. and would pay him for the sexual
encounters.
In count IV, Krack was charged with causing 15-year-old
M.C. to masturbate in front of Krack during 1995. M.C. reported
that some of his friends first introduced him to Krack when he was
12. Krack provided M.C. and his friends with fireworks. Krack paid
him cash to masturbate. Krack would eat M.C.'s semen.
M.C. stayed away from Krack for a couple of years but
returned when he was about 15. Krack paid M.C. to allow Krack to
perform fellatio on him. M.C. continued to visit Krack's house up
until a few days before the police arrested Krack.
In count V, Krack was charged with delivering amphetamine
to 14-year-old N.S. in November of 1995. N.S. reported that he met
Krack when he was 13. His mother worked at the Kanakanak Hospital
and introduced her son to Krack so that Krack could be a "big
brother" for N.S.
N.S. reported that he went to Krack's house along with
other boys. Krack supplied him with "speed" and "THC, Delta Nine"
drug capsules. The November 1995 delivery occurred when Krack and
N.S. came to Anchorage for the Great Alaska Shootout. Whenever
Krack traveled, N.S. said that he brought an inventory of drugs
"from pain killers and downers to THC and speed."
In count VI, Krack was charged with causing 14-year-old
B.H. to masturbate in front of him in the summer of 1994. B.H.
reported that he met Krack when he was about 12. When he visited
Krack's house, there were most often other boys there and they would
often watch sexually explicit movies. B.H. reported that Krack paid
him $200 to masturbate with him while they were camping near
Dillingham.
In count VII, Krack was charged with performing fellatio
on 13-year-old G.T. in the winter of 1984-85. G.T. reported that
he met Krack in 1983 or 1984. G.T. said that Krack started talking
with him when he was waiting for the school bus at the hospital
compound. He said that Krack did not start asking for sexual favors
until some time had passed. G.T. said that Krack gave him gifts
when he allowed Krack to perform fellatio on him. In addition, he
reported that Krack also gave him access to drugs, including
marijuana and morphine, and offered him cocaine. According to G.T.,
Krack engaged in sex acts with him, including anal intercourse,
until G.T. moved away from Dillingham.
Krack was not subject to presumptive sentencing, although
he faced a minimum 5-year sentence on count V, first-degree
misconduct involving a controlled substance. [Fn. 8] The State
contended that a number of statutory aggravating factors applied by
analogy to Krack's sentencing. [Fn. 9] Judge Andrews found that the
State proved aggravating factor (c)(10) [Fn. 10] with respect to
count I. Krack conceded that (c)(10) applied to counts II, III, IV,
VI, and VII. In addition, Krack conceded that aggravating factor
(c)(18) [Fn. 11] applied to all the sexual abuse counts, that is,
counts II, III, IV, VI, and VII. Krack also conceded that
aggravating factor (c)(21) [Fn. 12] applied to counts I, II, III,
IV, VI, and VII. Krack contended that mitigating factors (d)(9)
[Fn. 13] and (d)(14) [Fn. 14] applied to count V, but Judge Andrews
did not agree.
Judge Andrews found that Krack was a very skilled
manipulator of children. She found that the psychological
examination of Krack gave her no reason "to view the defendant as
amenable to treatment." Judge Andrews also found that Krack has "a
very ingrained deviant sexual pattern that makes him a predator in
the most subtle sense of the word, and that that has been going on
for a very long period of time."
Further, Judge Andrews concluded that he was not a first
offender in terms of his personal history. She also concluded that
his experience in New Mexico provided him with the chance for
rehabilitation. As she found, Krack was caught by the police in New
Mexico and confronted with prosecution. He announced that he
understood his need for professional help. Judge Andrews found that
he had the ability to receive assistance, and did not. She found
that he was forced to uproot himself from his professional and
personal life and that the New Mexico incident was a "sledgehammer."
In spite of the impact of the incident, and his knowledge of his
need for assistance, she found that Krack chose to relocate to the
relatively rural location of Dillingham and chose not to get
treatment.
Judge Andrews found that the sophistication and the manner
in which Krack obtained and utilized drugs was unique. Finally,
Judge Andrews found that Krack had engaged in conduct with G.T.
when he was twelve going on thirteen, which would constitute first-
degree sexual abuse of a minor. [Fn. 15]
When Judge Andrews considered the Chaney [Fn. 16]
criteria, she emphasized isolation because she had "so little
confidence in the rehabilitation potential of the defendant." She
thought that his chances for rehabilitation were "pretty dismal."
Moreover, she concluded that Krack was such a danger to the public
that she could not impose a sentence long enough to protect the
public because she could not impose "a lifetime behind bars." Judge
Andrews also emphasized community condemnation.
On the drug offenses, Judge Andrews imposed a 20-year term
with 5 years suspended on count V and a concurrent 3-year term on
count I. On the sexual abuse offenses, Judge Andrews imposed 6
years with 3 suspended on count II, 6 years with 3 suspended on
count III, 4 years with 2 suspended on count IV, 4 years with 2
suspended on count VI, and 7 years with 4 suspended on count VII.
The sentences on the sex offenses were consecutive to each other and
consecutive to the sentences on the drug offenses. Krack's
composite sentence was 47 years with 19 years suspended, yielding
a composite 28-year term to serve.
Discussion
Krack argues that Judge Andrews erred when she failed to
find the small-quantity mitigating factor that he alleged was
applicable to a consideration of his sentence on count V. This
claim is moot. Presumptive sentencing does not apply to first-
degree misconduct involving a controlled substance which is an
unclassified felony with a minimum 5-year sentence and a maximum 99-
year sentence. [Fn. 17] Judge Andrews found that the small
quantities mitigating factor was not proven by clear and convincing
evidence, but she did recognize that the amount of drugs was small
and would consider that small amount in sentencing. This was
perfectly appropriate. While the consideration of statutory
aggravating and mitigating factors can provide a useful guide for
the consideration of an appropriate sentence for an unclassified
felony, [Fn. 18] because the standards of presumptive sentencing do
not apply, Judge Andrews was authorized to consider the amount of
drugs involved without proof of the mitigating factor by clear and
convincing evidence.
Krack contends that his 28-year composite sentence is
excessive. As explained above, Krack was convicted of one count of
first-degree misconduct involving a controlled substance
(distributing schedule IA, schedule IIA, and schedule IIIA
controlled substances to minors) which had a sentencing range of 5
to 99 years. Krack was also convicted of several counts of second-
degree sexual abuse of a minor (engaging in sexual penetration with
children between the ages of 13 and 16). Those offenses were class
B felonies, with a sentencing range of 0 to 10 years. [Fn. 19]
In our sentencing decisions dealing with defendants
convicted of first-degree sexual abuse of a minor (sexual
penetration with children under the age of 13), this court has
established a sentencing range of 10 to 15 years' imprisonment for
aggravated instances of this crime. [Fn. 20] In a few exceptional
cases, we have approved even longer sentences sentences of up to
21 years to serve. [Fn. 21]
But first-degree sexual abuse of a minor is an
unclassified felony with a presumptive term of 8 years' imprisonment
for first felony offenders and a maximum term of 30 years'
imprisonment. [Fn. 22] Krack was convicted of a lesser degree of
crime a class B felony for which the statutorily prescribed
penalties are considerably less severe. We have never approved a
sentence of more than 12 years' imprisonment for a defendant
convicted of second-degree sexual abuse of a minor. [Fn. 23] Based
on this distinction, Krack argues that his composite sentence is
clearly mistaken.
The key to analyzing Krack's claim of excessive sentence
is to remember that Krack was convicted, not only of second-degree
sexual abuse of a minor, but also of first-degree misconduct
involving controlled substances. Only 13 years of Krack's composite
prison term is attributable to his sexual abuse convictions; the
remaining 15 years is attributable to Krack's drug conviction.
As noted above, first-degree controlled substance
misconduct is an unclassified felony with a maximum penalty of 99
years' imprisonment. Because Krack was convicted of distributing
drugs to minors, our past sentencing decisions dealing with
defendants convicted of second-degree sexual abuse of a minor do not
govern our analysis of Krack's overall sentence. The plain fact is
that the penalty for distributing drugs to minors is much more
severe than the penalty for sexually abusing them.
Moreover, under the facts of this case, Krack faced the
substantial possibility of a lengthy sentence for his drug offense.
His conduct in committing this offense was plainly aggravated.
Although Krack pleaded no contest to only one count of this offense,
the record reveals that he committed the offense numerous times and
with numerous victims. Further, Krack abused his position as a
pharmacist to obtain the drugs. Both Krack and the State seemingly
recognized that Krack could potentially receive a lengthy sentence
for his drug offense: one of the express terms of the plea
agreement was the stipulation that Krack's sentence for first-degree
controlled substance misconduct would not exceed 15 years to serve.
When we review a composite sentence imposed for several
criminal convictions, we assess whether the defendant's combined
sentence is clearly mistaken, given the whole of the defendant's
conduct and history. [Fn. 24] The record in the present case
reveals that Krack sexually abused dozens of boys over a period of
fifteen years in two different states. Krack accepted banishment
from New Mexico to escape prosecution for his acts of sexual abuse
in that state. Krack then came to Alaska, where he committed many
more acts of sexual abuse. To entice and manipulate his victims,
Krack took advantage of his position as a pharmacist to repeatedly
distribute controlled substances to these minors.
While the 13-year component of Krack's sentence
attributable to his second-degree sexual abuse convictions is more
severe than any sentence we have reviewed in the past, the
blameworthiness of Krack's sexual misconduct equals or exceeds the
conduct of defendants in past cases. Moreover, we believe that,
under the circumstances, the 15-year term Krack received for his
drug offense represents a lenient sentence for that criminal
conduct. In sum, when we gauge Krack's composite sentence against
the totality of his conduct, we conclude that the 28-year prison
term, while admittedly severe, is not clearly mistaken. [Fn. 25]
 Conclusion
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
State v. Glass, 583 P.2d 872 (Alaska 1978).
Footnote 2:
AS 11.71.010(a)(2).
Footnote 3:
AS 11.71.040(a)(3)(A).
Footnote 4:
AS 11.41.434(a)(1).
Footnote 5:
AS 11.41.436(a)(1).
Footnote 6:
AS 11.41.436(a)(1) & AS 11.31.100(a).
Footnote 7:
AS 11.41.438(a)(1).
Footnote 8:
AS 12.55.125(b).
Footnote 9:
See Wylie v. State, 797 P.2d 651, 662 (Alaska App. 1990).
Footnote 10:
AS 12.55.155(c)(10) (defendant's conduct was among the most
serious in the definition of the offense).
Footnote 11:
AS 12.55.155(c)(18)(B) (defendant "has engaged in the same or
[similar] conduct . . . involving the same or another victim").
Footnote 12:
AS 12.55.155(c)(21) (defendant had a history of repeated
criminal violations similar in nature to the present offense).
Footnote 13:
AS 12.55.155(d)(9) (defendant's conduct was among the least
serious within the definition of the offense).
Footnote 14:
AS 12.55.155(d)(14) (offense involved small quantities of a
controlled substance).
Footnote 15:
AS 11.41.434(a)(1).
Footnote 16:
State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
Footnote 17:
See AS 11.71.010(c) & AS 12.55.125(b).
Footnote 18:
See Gregory v. State, 689 P.2d 508, 509 (Alaska App. 1984).
Footnote 19:
See AS 11.41.436(b) & AS 12.55.125(d).
Footnote 20:
See State v. Andrews, 707 P.2d 900, 913-14 (Alaska App. 1985),
aff'd, 723 P.2d 85 (Alaska 1986).
Footnote 21:
See Lewis v. State, 706 P.2d 715, 717 (Alaska App. 1985);
Seymore v. State, 655 P.2d 786, 788 (Alaska App. 1982); Qualle v.
State, 652 P.2d 481, 488 (Alaska App. 1982).
Footnote 22:
See AS 11.41.434(b) & AS 12.55.125(i).
Footnote 23:
See generally Williams v. State, 928 P.2d 600, 609 (Alaska
App. 1996); Kirlin v. State, 779 P.2d 1251 (Alaska App. 1989).
Footnote 24:
See Neal v. State, 628 P.2d 19, 21 n.8 (Alaska 1981); Comegys
v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
Footnote 25:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
