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Brown v. State (7/7/2000) ap-1679
Brown v. State (7/7/2000) ap-1679
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES D. BROWN, )
) Court of Appeals No. A-6439
Appellant, ) Trial Court No. 3AN-95-1065 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1679 July 7, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, John E. Reese, Judge.
Appearances: Ronald A. Offret, Aglietti &
Offret, 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.
James D. Brown was convicted of second-degree murder and
was sentenced to serve 55 years. This sentence considerably exceeds
the 20- to 30-year benchmark range announced in Page v. State [Fn.
1] for first felony offenders convicted of second-degree murder.
Twice before, we have assessed the propriety of Brown's sentence in
light of this benchmark range. In our last decision [Fn. 2], we
concluded that the superior court had not offered any convincing
reason to depart from the benchmark range in Brown's case, and we
therefore directed the superior court to reduce Brown's sentence to
no more than 30 years to serve. The supreme court has now directed
us to reconsider our conclusion in light of the court's recent
decision in State v. Hodari. [Fn. 3]
Hodari is the latest stage of an appellate dialog
concerning the proper role of benchmark sentencing ranges. When the
legislature enacted Alaska's presumptive sentencing laws, the
legislature declared that its primary goals were to attain
reasonable uniformity in sentences and to eliminate unjustified
sentencing disparity. [Fn. 4] In an effort to foster these same
goals in cases not governed by presumptive sentencing, this court
has announced various "benchmark" sentencing ranges. Like the
presumptive terms enacted by the legislature, the benchmark
sentencing ranges serve as starting points for a judge's sentencing
analysis.
A benchmark range, like a presumptive term, does not
prohibit a sentencing judge from imposing a sentence at the upper
or lower limit of the sentencing range established by the
legislature. But just as a sentencing judge must justify a
departure from the applicable presumptive term, a sentencing judge
must explain a departure from the benchmark range.
In Hodari and in its predecessor, State v. Wentz [Fn. 5],
the supreme court admonished this court not to interpret or apply
benchmark ranges inflexibly. The court stressed that any sentencing
decision ultimately must be justified on the particular facts of a
defendant's offense and background, evaluated in light of the range
of sentences authorized by the legislature for that offense. Thus,
the supreme court warned, appellate courts should not "rely[] too
heavily on appellate review to articulate sentencing principles and
to fine-tune sentences [by] anticipat[ing] what other factual
situations might arise in the future [or by] fashion[ing] rules
prospectively". [Fn. 6]
In Williams v. State [Fn. 7], this court responded to the
supreme court's concerns. We clarified that benchmark ranges were
intended to serve only as "starting points" for sentencing analysis,
not "hard and fast limits" on a judge's sentencing discretion. [Fn.
8] We explicitly rejected the notion that sentencing judges could
deviate from a benchmark range "only when certain specific, limited
exceptions are established". [Fn. 9] Rather, we stressed that a
sentencing judge could properly rely on "any sound reason" to deviate
up or down from the benchmark. [Fn. 10]
We reiterated all of these principles in our prior opinion
in Brown's case:
Benchmarks are intended to help courts
avoid unjustified disparity in sentencing by forcing judges to
articulate reasons for imposing atypical sentences. When a
sentencing judge "decides that an offender deserves a sentence which
is significantly different from sentences previously given to
similarly situated offenders", the judge is required to "find some
legitimate basis for the difference" that is, a basis related to
the sentencing criteria originally announced in State v. Chaney,
[477 P.2d 441, 443-44 (Alaska 1970),] and now codified in
AS 12.55.005. The benchmark
promote[s] careful consideration of
whether actual differences exist between [the] case [before the
court] and prior, generally similar cases, and encourage[s]
[sentencing] courts to [clarify] their reliance on those differences
when they do exist.
Williams, 809 P.2d at 934. And, because
sentencing judges are required to articulate their reasons for
imposing sentences above or below the benchmark, the benchmark
fosters another goal: better-informed appellate review of
sentencing decisions.
. . . There are few legal restrictions on
the types of factors that a sentencing court can consider when
assessing whether a particular sentence should fall outside the
benchmark range. As we stressed in Williams, "any sound reason may
be relied on to differentiate one case from another." But the
benchmark does serve as an anchor: a sentencing judge must have
sound reasons before imposing a sentence that varies from the
benchmark.
Brown v. State, 973 P.2d at 1162 (footnotes omitted).
Mindful of these principles, we renew our consideration
of Brown's case.
Page established a benchmark range of 20 to 30 years to
serve for first felony offenders convicted of second-degree murder.
[Fn. 11] When we initially reviewed Brown's 55-year sentence, we
noted that the sentencing judge had not offered any explanation for
his decision to exceed the Page benchmark range by 25 years. We
therefore remanded Brown's case to the superior court and directed
the sentencing judge to explain this departure from the 20- to 30-
year benchmark range. [Fn. 12]
On remand, the sentencing judge offered various reasons
for exceeding the benchmark range. We discussed all of these
offered reasons in our second opinion. [Fn.
13] Ultimately, we rejected all of the sentencing judge's
justifications for exceeding the Page benchmark.
But, for purposes of assessing our decision in light of
Hodari, the important thing is that we did not reject any of the
sentencing judge's offered reasons on legal grounds. That is, we
did not rule that the judge's reasons were per se inadequate to
justify a departure from the Page benchmark range. Rather, we
rejected the judge's sentencing decision because, even adopting the
judge's view of the evidence, his offered reasons for exceeding the
Page benchmark were not supported by the record. [Fn. 14]
We stand by our previous rulings that a benchmark range
is but a starting point for sentencing analysis, and that any sound
reason can justify a departure from the benchmark range. We fully
adopt and endorse the supreme court's admonitions in Hodari and
Wentz that an appellate court should not limit a sentencing judge's
discretion by creating an exclusive list of pre-determined factors
which alone will justify a departure from the benchmark range. Our
decision in Brown's case is fact-based: the sentencing judge's
offered justifications for exceeding the benchmark range are not
supported by the judge's own findings and evidentiary assumptions.
When the record fails to support a sentencing judge's
offered justifications for departing from a benchmark range, an
appellate court should direct the sentencing judge to impose a
sentence within the benchmark range. We therefore REVERSE Brown's
55-year sentence and direct the superior court to sentence Brown to
no more than 30 years to serve.
FOOTNOTES
Footnote 1:
657 P.2d 850, 855 (Alaska App. 1983).
Footnote 2:
Brown v. State, 973 P.2d 1158 (Alaska App. 1999).
Footnote 3:
996 P.2d 1230 (Alaska 2000).
Footnote 4:
See AS 12.55.005.
Footnote 5:
805 P.2d 962 (Alaska 1991).
Footnote 6:
Hodari, 996 P.2d at 1235 (quoting Wentz, 805 P.2d at 967).
Footnote 7:
809 P.2d 931 (Alaska App. 1991).
Footnote 8:
Id. at 933.
Footnote 9:
Id.
Footnote 10:
Id. at 934.
Footnote 11:
See Sam v. State, 842 P.2d 596, 603 (Alaska App. 1992) ("[T]he
Page benchmark is meant to reflect the appropriate starting point
for sentencing in second-degree murder cases involving first felony
offenders.").
Footnote 12:
Brown v. State, Alaska App. Memorandum Opinion No. 3815 (May
6, 1998).
Footnote 13:
Brown v. State, 973 P.2d at 1161, 1162-64.
Footnote 14:
Brown, 973 P.2d at 1163-64.
