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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GENE V. MARTIN, JR., )
)
) Court of Appeals No. A-6699
Appellant, ) Trial Court No. 3KO-96-048 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1622 - February 19, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Kodiak, Donald D. Hopwood, Judge.
Appearances: Allan R. Thielen, Assistant
Public Defender, Kodiak, and Barbara K. Brink,
Public Defender, Anchorage, for Appellant.
Nancy R. Simel, 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.
MANNHEIMER, Judge.
On the evening of January 25, 1996, Gene V. Martin asked
a female acquaintance, K.W., to go for a ride with him. Martin's
ostensible purpose was to have a frank conversation with K.W. about
a mutual friend. During this drive, Martin stopped his truck and
offered K.W. some cocaine; she accepted. After they shared the
cocaine, Martin drove to a remote location. He asked K.W. to get
out of the truck, telling her that he needed to fold the seat
forward so that he could reach something in the cab. Both Martin
and K.W. got out of the vehicle. Then Martin grabbed K.W., held a
knife to her throat, and told her she would have to "pay" for the
cocaine. Martin forced K.W. into the bed of the pickup, where he
sexually assaulted her in various ways over the course of two
hours. K.W. initially fought Martin, but he was considerably
bigger than she was, and K.W. ultimately submitted after Martin
struck her in the face particularly forcefully.
Martin was initially indicted for kidnapping and several
counts of first-degree sexual assault. Ten months later, the State
filed a superseding information charging Martin with only one
offense: third-degree misconduct involving a controlled substance
(delivery of cocaine).1 Martin pleaded no contest to this
substitute charge, and he received a sentence of 9 years'
imprisonment with 2 years suspended (7 years to serve). Martin was
also ordered to participate in sex offender treatment during his
imprisonment, if such treatment was offered to him by the
Department of Corrections.
In this appeal, Martin asserts that this sentence is
excessive. He also challenges the provision requiring him to
participate in sex offender treatment. For the reasons explained
here, we affirm Martin's sentence.
Martin's criminal history, and the evidence adduced at
the sentencing hearing
Martin's offense, third-degree controlled
substance misconduct, is a class B felony.2 Martin had
one previous felony conviction: in 1992, in the State of
Washington, Martin climbed on top of a sleeping woman and
penetrated her vagina with his fingers; based on this
conduct, he was convicted of attempted second-degree
rape. Because he was a second felony offender, Martin
faced a presumptive term of 4 years' imprisonment for his
present drug offense.3
In addition to his 1992 felony conviction from
Washington, Martin had committed other assaults on women.
In 1989, in Palmer, Martin was convicted of assault for
beating up his wife, T.N.. Martin received a suspended
imposition of sentence for this offense after T.N. asked
the authorities to drop the charge.
When T.N. was contacted by the pre-sentence
investigator in preparation for the sentencing in the
present case, T.N. told the investigator that she
believed Martin had participated in a 1986 sexual assault
on a nude dancer in the Soldotna area. On the evening of
the rape, Martin and two friends visited the bar where
the dancer worked. The next morning, the police came to
Martin's home to question him about his possible
knowledge of this crime. According to T.N., Martin lied
to the officers: he told them that he had not gone out
the previous night. Then, after the officers had gone,
Martin left the house and returned to the bar to "'dump'
the dancer's purse [there]".
In addition to speaking with the pre-sentence
investigator, T.N. also testified at Martin's sentencing
hearing. She told the court that, during her marriage to
Martin, Martin had frequently beaten her. She described
one occasion in which Martin beat her and gouged her eyes
until blood ran down her face. In addition, Martin often
threatened to kill T.N.; sometimes, he would threaten to
cut her body into little pieces and throw the pieces into
Cook Inlet.
T.N. ultimately left Martin in November 1990,
after she found out that Martin had assaulted a woman in
the El Toro Lounge, a bar in the Palmer-Wasilla area.
The victim of this assault, J.G., also testified at
Martin's sentencing hearing.
J.G. told the court that, on November 9, 1990,
she had gone to use the women's restroom at the El Toro.
When she opened the stall, Martin was there, sitting on
the toilet so that his feet wouldn't show. Martin pushed
J.G. aside and left the restroom.
J.G. thought that Martin was gone, so she went
ahead and used the toilet. But as she was standing up
and fastening her pants, Martin broke into the stall
again and grabbed her. He slammed her against the back
of the stall. When J.G. screamed, Martin put his hand
over her mouth. J.G. then kicked Martin in the groin.
When Martin dropped down in pain, J.G. ran past him out
of the restroom, and then she quickly told a friend what
had just happened. By this time, Martin was running out
the back door of the bar.
J.G., a male companion, and the El Toro
bouncers chased Martin out in the parking lot. Martin
tried to get into one of the little cabins nearby, but
the doors were locked. J.G.'s companion tackled Martin,
but the bouncers advised him to let Martin go, so the
companion released him. Martin jumped up and ran to his
van. Martin had apparently planned for a speedy escape,
because the engine was already running.
As Martin was leaving the restaurant parking
lot, he backed his van into another vehicle, causing
approximately $1400 in damage. He then fled the scene.
Martin drove recklessly down the highway, speeding and
passing several vehicles in an attempt to beat a railroad
train to a crossing. He was unsuccessful: his van was
struck by the train, causing the vehicle to leave the
road and overturn. Martin, however, was only slightly
injured, and he fled on foot.
When he returned home, Martin lay down to
sleep on the couch. T.N. knew that he was injured, so
the next morning she went to Martin's workplace to see if
she could find out what actually had happened the night
before. Martin's boss told her that Martin was suspected
of assaulting a woman in the El Toro Lounge. When T.N.
went to the El Toro and the bartender confirmed that this
was true, T.N. decided to leave Martin. She called the
police and let them know where to find Martin. She then
took the children and went to stay at a neighbor's house.
The next day, Martin found her. He banged on the door
of the house and threatened to kill her. T.N. met her
husband with a shotgun; she told Martin that she would
shoot him then and there if he didn't leave. That was
the last time T.N. saw Martin until the sentencing
hearing in this case.
Based on this incident at the El Toro Lounge,
Martin was charged with misdemeanor assault in the Palmer
district court. Released on bail, he then failed to
appear and a bench warrant was issued for his arrest.
This warrant was still pending some five years later when
Martin was arrested in the present case.
Aggravating and mitigating factors
Based on this criminal history and the facts
of the present case, Superior Court Judge Donald D.
Hopwood found that the State had proved several
aggravating factors under AS 12.55.155(c): (c)(1) -
that Martin inflicted physical injury on K.W.; (c)(7) -
that Martin's prior felony (the attempted rape in
Washington) was a more serious class of felony than his
current offense; (c)(8) - that Martin's criminal history
included aggravated or repeated instances of assaultive
behavior; (c)(10) - that Martin's offense (delivery of
cocaine) was among the most serious conduct included
within the definition of the offense; (c)(12) - that
Martin was on release from a misdemeanor charge involving
assault (the assault at the El Toro Lounge) when he
committed the present offense; and (c)(20) - that Martin
was on felony probation (his probation from the 1992
attempted rape in Washington) when he committed the
present offense.
Martin proposed three mitigating factors under
AS 12.55.155(d): (d)(9) - that Martin's offense was
among the least serious conduct within the definition of
the crime; (d)(14) - that Martin's delivery of cocaine
involved only a small amount; and (d)(15) - that
Martin's delivery of cocaine had not been done for
profit. Judge Hopwood found that Martin had proved the
last of these mitigators, but he rejected the other two.
On appeal, Martin contends that Judge Hopwood
should have found mitigator (d)(14) - that Martin's
delivery of cocaine involved only a small amount. Martin
bases his argument on the contention that he gave K.W.
only 1/2-gram of cocaine. This may have been the amount of
cocaine that K.W. consumed, but Judge Hopwood found that
Martin "delivered" (that is, handed K.W.) the entire 1-
gram slip. Judge Hopwood also found that 1 gram of
cocaine is a "typical amount ... delivered for immediate
use". Martin has failed to show that either of these
findings is clearly erroneous.4 We therefore uphold
Judge Hopwood's ruling on mitigator (d)(14).
Martin also challenges Judge Hopwood's ruling
that the State proved aggravator (c)(10) (conduct among
the most serious) and his concomitant ruling that Martin
failed to prove mitigator (d)(9) (conduct among the least
serious). The gist of Martin's argument is that the
seriousness of his drug offense should be judged solely
on the circumstances directly relating to his delivery of
the cocaine to K.W. - for example, the quantity of the
drug, and whether Martin expected to profit monetarily
from the delivery. Martin contends that his sexual and
physical assaults on K.W. are irrelevant to determining
the seriousness of his drug offense, and therefore Judge
Hopwood should not have considered this aspect of
Martin's behavior when he ruled on aggravator (c)(10) and
mitigator (d)(9).
Judge Hopwood's ruling that the State had
proved aggravator (c)(10) was based on the judge's
factual finding that Martin's delivery of cocaine to K.W.
was "just one part of the crime he set up, [just one part
of] the design he had with this particular victim".
Judge Hopwood explicitly stated that his ruling with
regard to aggravator (c)(10) was based not simply on the
fact that Martin had sexually assaulted K.W., but rather
on the fact that Martin's delivery of cocaine to K.W. was
motivated by his intention to commit a sexual assault:
THE COURT: I want to emphasize to
everybody, and for the record, that the
defendant is not being sentenced for sexual
assault. But it's impossible to ignore that
[assault] or to separate it out, since [the
assault] was part of the circumstances: it
was an integral part of the setting, and [it
was] part of the defendant's purpose in
delivering the cocaine.
. . .
[The delivery of cocaine] was done for
the defendant's own sexual gratification, and
it was done by design. ... The return [on
the cocaine] was sexual gratification. And
it's pretty clear to me, from all the
evidence, that the defendant was going to
[obtain] his gratification regardless of
[K.W.]'s consent. And he was going to do it
by force, or he was going to do it by making
her vulnerable if she was under the influence
of cocaine. ... When I [examine] the
defendant's history, and when I see the design
and purpose he had in this case, I think the
delivery of the cocaine was most serious.
In attacking Judge Hopwood's ruling,
Martin relies on language from this court's
decision in Brezenoff v. State5:
AS 12.55.155(c)(10) stresses the conduct
involved in the specific offense under
consideration rather than the personal
characteristics of the offender[.] [It]
requires comparison of the conduct
constituting the crime in question with other
conduct which would satisfy the elements of
the offense. This aggravating factor does not
require a comparison of the defendant to other
potential defendants committing the offense.
658 P.2d at 1363.
It is true that aggravator (c)(10)
focuses on the defendant's conduct, not the
defendant's personal characteristics. But
Judge Hopwood did not rely on Martin's
personal characteristics; he based his
decision on Martin's motive for giving cocaine
to K.W. and on the conduct that ultimately
accompanied Martin's delivery of this drug.
This was proper. Our prior decisions
construing aggravator (c)(10) are inconsistent
with the restrictive definition of "conduct"
that Martin proposes.
For example, in Curl v. State6 the
defendant was convicted of a single count of
sexual abuse of a minor. The sentencing judge
found aggravator (c)(10) based on evidence
that the charged incident of sexual abuse was
but one of a series of twenty to twenty-five
similar episodes, committed over a period of
approximately four months, many of which
apparently involved multiple acts of sexual
contact. We upheld the sentencing judge's
finding of aggravator (c)(10).7
And in Machado v. State8, the
defendant was sentenced for perjury. The
sentencing judge found aggravator (c)(10)
based on the fact that Machado's perjury went
to a material issue and the fact that Machado
committed the perjury in an attempt to escape
prosecution for his part in a car bombing. We
upheld the sentencing judge's finding of
aggravator (c)(10).9 In particular, we noted
that "Machado's motive for giving the false
testimony ... seem[s] to make his offense
particularly severe."10
We therefore conclude that Judge
Hopwood properly considered Martin's motive
for delivering cocaine to K.W.. And, because
Judge Hopwood concluded that Martin's motive
for this crime was to accomplish a sexual
assault, Judge Hopwood could properly conclude
that Martin's ensuing physical and sexual
assaults on K.W. were related to the delivery
of cocaine and aggravated that offense.
The length of Martin's sentence
In Judge Hopwood's sentencing remarks, he
stressed two aggravators: (c)(8) (Martin's history of
assaultive behavior) and (c)(10) (conduct among the most
serious within the definition of the offense). The judge
concluded that these two aggravators were important
because the delivery of cocaine was accompanied by an
"extreme[ly] assaultive" rape, and because the
accomplishment of this rape was Martin's motive for
delivering the cocaine.
Judge Hopwood also found that Martin's
potential for rehabilitation was "poor". The judge
reached this conclusion based on several factors:
Martin's criminal record, the judge's personal
observations of Martin in court, and the fact that Martin
had never shown remorse or accepted responsibility for
his actions. These second and third factors require an
explanation.
As noted above, K.W. testified at Martin's
sentencing hearing; she described her meeting with
Martin, the delivery of cocaine, and the ensuing assault.
The State called K.W. to rebut Martin's testimony:
Martin took the stand at the sentencing hearing and, in
lengthy testimony, he denied that a sexual assault had
occurred. Martin testified that he went driving with
K.W. because K.W. propositioned him, offering her body in
exchange for cocaine. Martin further testified that,
after they shared the cocaine, K.W. willingly kissed and
fondled Martin. Martin then drove to a secluded
location, where they engaged in consensual sex. Martin
denied assaulting K.W. with the knife, and he denied
beating her.
When Judge Hopwood announced his findings of
fact at the conclusion of the sentencing hearing, he
implicitly found that Martin had committed multiple
instances of perjury during his testimony. The judge
found that K.W. had not offered herself for cocaine and
that K.W. had not intended to engage in sexual relations
with Martin. The judge further found that Martin
restrained K.W., held a knife against her throat, and
then engaged in multiple acts of sexual penetration
against her will. In other words, Judge Hopwood found
that Martin's account of those events was knowingly
false.
Judge Hopwood found that Martin's delivery of
cocaine was a crime of design, motivated by a plan to
sexually assault K.W.. The judge noted that Martin had
repeatedly engaged in assaultive conduct against women -
even while he was on probation from his attempted rape
conviction in Washington. He also noted that Martin had
engaged in repeated acts of dishonesty as well as
repeated violations of bail conditions and probation
conditions. Judge Hopwood found that Martin had a
severe, long-term alcohol and drug problem. He noted
that Martin had made promises of rehabilitation in the
past, but nothing had ever come of these promises.
Based on these findings, Judge Hopwood
assessed the term of imprisonment he would impose. As
already noted, Martin's offense is a class B felony and
Martin, as a second felony offender, faced a presumptive
4-year term. Judge Hopwood noted that, under the
benchmark sentencing ranges established in State v.
Jackson for first felony offenders convicted of class B
felonies11, a defendant who commits an "exceptionally
aggravated" class B felony (one involving significant
aggravating factors) can receive up to 6 years to serve.
12 Judge Hopwood concluded, for the reasons explained
above, that Martin's offense was "exceptionally
aggravated" under the Jackson categories. The judge
reasoned that, because Martin was a second felony
offender, he should receive a more severe sentence than
a similar first felony offender would receive under the
Jackson benchmarks. The judge therefore sentenced Martin
to serve 7 years in prison (9 years with 2 years
suspended).
We agree with Judge Hopwood that Martin's
offense is exceptionally aggravated. Martin has a
lengthy history of physical and sexual assaults on women
- including acts of physical and sexual violence
committed while Martin was on felony probation from an
attempted rape conviction in the State of Washington.
Judge Hopwood could justifiably conclude that Martin is
a dangerous offender. Moreover, based on Martin's
recidivism, his lack of remorse, and his failure to take
responsibility for his crimes (indeed, his extensive
perjury at the sentencing hearing), Judge Hopwood could
properly conclude that Martin's prospects for
rehabilitation were poor.
Under the circumstances of this case, a
sentence of up to 6 years to serve would have been
supportable if Martin had been a first felony offender.
But he was a second felony offender. Given Martin's
status as a second felony offender, we conclude that his
sentence of 7 years to serve is not clearly mistaken.13
The provision that Martin must participate in sex
offender treatment if such treatment is offered to him in
prison
Finally, Martin challenges Judge Hopwood's
decision to require him to engage in sex offender
treatment while in prison if the Department of
Corrections offers him such treatment. Martin asserts
that "it is difficult to ascertain from the record why
the sentencing [judge] ordered sex offender treatment".
Martin's contention is close to frivolous.
Martin committed multiple acts of sexual assault on K.W.
in this case. In 1992, he was convicted of attempted
rape in Washington. And, in 1990, he hid in the women's
restroom of a bar and assaulted a woman there. This
record certainly justifies the conclusion that Martin is
in need of sex offender treatment.
The fact that Martin was convicted of a drug
offense rather than a sexual offense did not bar Judge
Hopwood from ordering Martin to engage in sex offender
treatment. In Miyasato v. State14, we upheld a
sentencing judge's decision to require the defendant to
engage in sex offender treatment even though he was
convicted of a property crime (burglary), not a sex
crime.15 We noted that
[although] [c]onditions of probation
must be reasonably related to the
rehabilitation of the offender and
the protection of the public, ... a
condition of probation need not
directly relate to the offense for
which the defendant stands
convicted. [For example, in] Allain
v. State, 810 P.2d 1019 (Alaska App.
1991), this court upheld a probation
condition that forbade the defendant
from drinking alcoholic beverages,
even though the defendant's offense
was not alcohol-related. Allain,
810 P.2d at 1022-23. This court
upheld the condition because it
enhanced the defendant's prospects
for rehabilitation[.]
Miyasato, 892 P.2d at 201-02 (some citations
and internal quotations omitted). Miyasato
had a record of sex offenses, and his prior
behavior exhibited misogyny. We therefore
concluded that there was "ample basis for [the
sentencing judge] to conclude that sex
offender treatment was integrally related to
Miyasato's rehabilitation and to the future
protection of the public."16
Martin concedes that Miyasato and
Allain (cited in the excerpt from Miyasato)
allow sentencing courts to order defendants to
engage in rehabilitative programs that are not
directly related to the offense for which they
are being sentenced. Martin argues, however,
that Judge Hopwood never made explicit
findings to support his decision to order
Martin to participate in sex offender
treatment.
Given the record in this case, the
basis for Judge Hopwood's decision would be
clear even if the judge had failed to address
this issue. But he did. Judge Hopwood
declared that he viewed Martin's behavior in
the present case
[as] a continuation of a
pattern ... , [a
continuation of behavior]
that the defendant has
done before in various
ways. This incident here
involved a physical and
sexual assault. I've
already noted [that] he's
committed prior assaults,
and at least one sexual
assault in Washington.
And [in] these other
incidents, ... maybe all
of them, but at least
most of them, the
defendant had consumed
alcohol or drugs. And in
the [Washington] case,
the victim of the sexual
assault was intoxicated.
. . .
[I]t just seems to me that the delivery of the
cocaine here was just one part of the crime he
set up, [one part of] the design he had with
this particular victim[.] ... And he's done
that before. ... [T]he defendant is not
being sentenced on the sexual assault, but
it's impossible to ignore that [sexual
assault] or to separate it out, since it was
part of the circumstances. It was an integral
part of the setting, and part of the
defendant's purpose in delivering the cocaine.
... [T]his incident here, and [also] the
Washington case, [were] done for the
defendant's own sexual gratification and
[were] done by design.
In light of these findings, Judge Hopwood's
decision to order Martin to engage in sex
offender treatment was reasonably related to
Martin's rehabilitation and to the future
protection of the public.
Conclusion
The superior court's sentencing decision is
AFFIRMED.
Footnotes
1 AS 11.71.030(a)(1).
2 AS 11.71.030(c).
3 AS 12.55.125(d)(1).
4 See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App.
1991) (holding that a sentencing judge's findings concerning
proposed aggravating and mitigating factors are reviewed under the
"clearly erroneous" test); Knight v. State, 855 P.2d 1347, 1349
(Alaska App. 1993) (for purposes of applying mitigator (d)(14), a
"small quantity" is a quantity that is uncharacteristically small
when compared to the broad middle-ground covered by a typical drug
case).
5 658 P.2d 1359, 1363 (Alaska App. 1983).
6 843 P.2d 1244 (Alaska App. 1992).
7 See id. at 1245.
8 797 P.2d 677 (Alaska App. 1990).
9 See id. at 690.
10 Id.
11 776 P.2d 320, 326-27 (Alaska App. 1989).
12 See id. at 326.
13 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding that an appellate court will affirm a sentencing decision
unless it is clearly mistaken).
14 892 P.2d 200 (Alaska App. 1995).
15 Id. at 200-01.
16 Id. at 202.
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