Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Brueggeman v State (05/04/2001) ap-1737
Brueggeman v State (05/04/2001) ap-1737
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
STATE OF ALASKA, )
) Court of Appeals No. A-7621
Appellant, ) Trial Court No. 3PA-S98-485 CR
)
v. )
) O P I N I O N
AARON LEO BRUEGGEMAN, )
)
Appellee. ) [No. 1737 May 4, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Palmer, Larry D. Card, Judge.
Appearances: Douglas H. Kossler, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. Douglas O. Moody, Assistant Public Defender, and Barbara
K. Brink, Public Defender, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
COATS, Chief Judge, concurring.
This is a sentence appeal brought by the State. Aaron L.
Brueggeman received a suspended imposition of sentence for the class
B felony of perjury. The sentencing judge did not require
Brueggeman to serve any time in jail as a condition of this
sentence, although he did order Brueggeman to perform 500 hours of
community work. The State contends that this sentence improperly
fails to reflect the seriousness of Brueggeman's crime that it
fails to satisfy the sentencing goals of deterrence and
reaffirmation of societal values. We agree with the State, and we
therefore disapprove the sentence. [Fn. 1]
Facts of the case
In March 1996, a young woman gave birth to a daughter.
Brueggeman was the father of this child. Initially, Brueggeman
acknowledged the child as his, but he later developed doubts about
his paternity and stopped supporting his child.
In May 1996, the mother of the child applied for public
assistance. She identified Brueggeman as her child's father, and
she assigned her child support rights to the State. In August 1996,
the Child Support Enforcement Division (CSED) filed a paternity
action against Brueggeman.
Brueggeman privately arranged for genetic testing at the
Valley Phlebotomy Service in Wasilla. On October 28, 1996, he
directed the mother and child to go there so that the service could
obtain genetic samples from them. The next day, Brueggeman had his
friend (and later co-defendant) David Hood go to Valley Phlebotomy
and pose as Brueggeman. Hood identified himself as Brueggeman,
presented the service with Brueggeman's Alaska State identification
card, signed his name as Brueggeman, and provided a sample for
paternity testing.
Not surprisingly, genetic testing of this sample excluded
"Brueggeman" (i.e., Hood) as the father of Brueggeman's child.
Brueggeman filed the test results with the court and asked the court
to dismiss the paternity case. But the State was not satisfied that
Brueggeman was in fact the person who provided the sample, so the
State asked the court to order another paternity test. Brueggeman
opposed the motion and claimed that he was being harassed because
he had already taken a paternity test.
Over Brueggeman's objection, the superior court granted
the State's motion for another test. Brueggeman missed two
scheduled appointments for this second test, the second on advice
of counsel. Finally, the court granted the State's motion to compel
Brueggeman to appear for testing.
While this litigation was proceeding, Brueggeman condoned
and participated in a letter-writing campaign conducted by a woman
who was a friend of his family. The aim of this campaign apparently
was to convince various state legislators that the CSED was
harassing an innocent citizen, so that these legislators would
pressure the CSED and the Attorney General's Office to drop the
paternity suit against Brueggeman. These letters contained
language and assertions personally approved by Brueggeman. The
letters accused the CSED of harassing Brueggeman by requesting a
second paternity test. The letters also asserted that the child's
mother was a promiscuous woman who had falsely accused Brueggeman
of being the father of her child because she was poor and needed
money.
Ultimately, Brueggeman (now represented by counsel)
notified the court that he would submit to the additional paternity
test under protest. However, Brueggeman once more conspired with
Hood to defraud the court, the State, and the child's mother. On
September 25, 1997, Hood appeared for the court-ordered test and
once again identified himself as Brueggeman. He presented
Brueggeman's identification and signed his name as Brueggeman. Hood
then provided a sample for genetic testing. And again, the genetic
testing of Hood's body sample showed that "Brueggeman" (i.e., Hood)
was not the father of Brueggeman's daughter.
This time, however, the people who administered the test
took Hood's photograph and thumb print. When the State showed this
photograph to the mother of the child, she identified the person in
the photograph as Hood, not Brueggeman.
Meanwhile, Brueggeman moved for summary judgment in the
paternity case based on the result of the second genetic test. The
State opposed Brueggeman's motion, offering an affidavit from the
mother in which she identified Hood as the person in the photograph
taken at the court-ordered test.
Rather than admitting his fraud, Brueggeman answered with
his own affidavit in which he falsely claimed that he had twice
appeared and been tested, both at the original genetic test in
October 1996 and at the second, court-ordered test in September
1997. To further bolster his position, Brueggeman induced Hood to
sign a false supporting affidavit. In his supporting affidavit,
Hood falsely claimed that he had never taken a paternity test and,
more specifically, that he had never done so for Brueggeman.
In the face of these competing affidavits, the court
ordered both Brueggeman and Hood to provide genetic samples and
fingerprints. This third round of genetic testing confirmed that
the genetic samples from the two prior tests could not have come
from Brueggeman (and had probably come from Hood). The testing also
showed that Brueggeman was the father of the child. Finally, the
court-ordered fingerprinting showed that the thumb print taken at
the time of the second test (September 1997) was Hood's.
Based on these facts, a grand jury indicted Brueggeman on one
count of scheme to defraud, [Fn. 2] two counts of tampering with
physical evidence, [Fn. 3] and four counts of perjury. [Fn. 4] The
State also filed an information charging Brueggeman with attempted
criminal non-support. [Fn. 5]
Brueggeman ultimately reached a plea agreement with the
State in which he pleaded no contest to one count of perjury and to
attempted criminal non-support. The plea agreement called for open
sentencing on the perjury charge and for a sentence of 90 days'
imprisonment, all suspended, on the attempted criminal non-support
charge. The State dismissed the other charges.
The sentencing
Perjury is a class B felony, punishable by a maximum term
of 10 years' imprisonment and by a fine of up to $50,000. [Fn. 6]
Because Brueggeman was a first felony offender, he was not subject
to a presumptive term. [Fn. 7] However, his sentence was governed
by the guidelines established by this court in State v. Jackson.
[Fn. 8]
In Jackson, this court reviewed sentencing decisions for
first felony offenders convicted of class B felonies. Based on our
review of past sentences, and relying on the rule we announced in
Austin v. State [Fn. 9] (that a first felony offender should
normally receive a more favorable sentence than the applicable
presumptive term for a second felony offender [Fn. 10]), we declared
in Jackson that a typical first felony offender committing a typical
to moderately aggravated class B felony should receive between 1
year and 4 years to serve. [Fn. 11] Sentences of between 90 days
and 1 year to serve should be imposed only in a case "that is less
serious than the norm for the offense, either because it involves
mitigated conduct or [because it involves] an offender whose
background indicates particularly favorable prospects for
rehabilitation." [Fn. 12] Finally, "probationary" sentences
sentences involving less than 90 days' incarceration "should be
reserved for cases that are significantly mitigated in terms of both
the offender and the offense." [Fn. 13]
Although the State was not seeking a sentence of more than
4 years to serve, the State proposed two aggravating factors under
AS 12.55.155(c): (c)(10) that Brueggeman's conduct was among the
most serious included within the definition of the offense; and
(c)(16) that Brueggeman's conduct was designed to obtain
substantial pecuniary gain with slight risk of prosecution and
punishment. The defense proposed one mitigating factor under AS
12.55.155(d): (d)(9) that Brueggeman's conduct was among the
least serious included within the definition of the offense. In
addition, the defense proposed the non-statutory mitigating factor
of exceptional prospects for rehabilitation. [Fn. 14]
The superior court received letters from more than thirty of
Brueggeman's friends and relatives including one from the mother
of the child, who had reconciled with Brueggeman and was now engaged
to marry him. All of these letters urged the court to show leniency
because Brueggeman's crime was an uncharacteristic episode in an
otherwise exemplary life, and because Brueggeman was now prepared
to assume responsibility for his child.
Early in the sentencing proceedings, Superior Court Judge
Larry D. Card announced that, "unless something drastically
[different]" was revealed at sentencing, he was prepared to give
Brueggeman a very lenient sentence:
Mr. Brueggeman ... has no prior criminal
record, he's a youthful offender, [and] even under [the sentencing
guidelines established in State v.] Jackson he's the type of person
that appears, unless proven otherwise, ... to have exceptional
rehabilitation prospects, and it also appears [to me] that going to
jail would not be ... in his interests or [the] interests of the
family that we're trying to get supported. ... I deal daily [with
cases of] murder, rape, and robbery, and among [those] cases, even
[class] B felonies, this is not [one of] those which appear to be
most serious, even among white-collar criminals.
Later, toward the close of sentencing, Judge Card
reiterated that he believed Brueggeman had exceptional prospects for
rehabilitation. The judge declined, however, to make express
findings on the other mitigating factor proposed by the defense
(conduct among the least serious within the definition of the
offense), or on the aggravating factors proposed by the State.
Instead, Judge Card declared that, "[f]or purposes of any appeal,
[the Court of Appeals] can refer to my previous findings on this
fact pattern" at the earlier sentencing of Brueggeman's co-
defendant, David Hood.
Judge Card's remarks at Hood's sentencing show that he
rejected the contention that Brueggeman's offense was among the
least serious within the definition of perjury. At Hood's
sentencing, Hood argued that the court should find mitigator
AS 12.55.155(d)(13) that the facts surrounding his offense
demonstrated that he had caused only slight harm, harm so minor as
to be "inconsistent with the imposition of a substantial period of
imprisonment." Judge Card declared that Hood had failed to prove
this mitigator:
[T]his is not minor, it's a very important
issue, as [the prosecutor] [h]as so aptly argued. The entire child
support system is under assault. As a civil judge, I did ...
hundreds ... of civil support cases. Difficult cases. And to
frustrate the ends [of justice] by an act like this does not
constitute the least serious [conduct]. I think it probably could
go right to the heart [of the system] if we had many more people
doing this.
As Judge Card found, Hood participated in this criminal
episode only because Brueggeman prompted him to; the judge declared
that he held Brueggeman "responsible for Mr. Hood being involved."
Moreover, Hood was clearly the junior partner in the enterprise.
According to testimony given at Hood's sentencing, Hood's IQ is
subnormal and his level of verbal functioning is so low that the
psychologist could not administer the Minnesota Multiphasic
Personality Inventory II to him. Thus, when Judge Card declared
that Hood's offense was not minor, and when he declared that he was
re-adopting this finding for purposes of Brueggeman's sentencing,
Judge Card necessarily rejected proposed mitigator (d)(9). That is,
the judge necessarily rejected the contention that Brueggeman's
conduct was among the least serious within the definition of
perjury.
Despite Judge Card's finding that Brueggeman's offense was
not among the least serious conduct within the definition of perjury
that, in fact, Brueggeman's offense "[went] right to the heart"
of the justice system, Judge Card decided to impose a sentence that
did not include any jail time. The judge declared that Brueggeman
was a "young naive unsophisticated kid" who "did what kids do"
he "committed a very ... stupid act." Although Brueggeman had
repeatedly lied under oath and presented false evidence, Judge Card
concluded that Brueggeman was "not the type of person [who] would
normally have done that. He [has] a good character. ... He's
basically ... a good kid. He's remorseful." Judge Card
then addressed the Jackson sentencing guidelines:
[When] I look at Jackson as a guideline[,]
[w]e have a Class B felony, we have a first-time felony offense, and
this is the kind of case [that] I think rings out for a probationary
sentence involving less than 90 days [of imprisonment]. [Such a
sentence is] appropriate for a first-time offender, and that is what
he is. He has no criminal record. And ... [t]his is a case which
... is significantly mitigated because even though there was a
speculation that there could've been a huge amount of [unpaid child
support], that was mere speculation. It's kind of like the
embezzler who has a good scheme but gets caught [early on]. ...
[T]his is not really the type of offense that he could've gotten
away with very long.
Judge Card then gave Brueggeman a suspended imposition of
sentence, placing him on probation for 5 years. The judge did not
require Brueggeman to serve any jail time. He imposed a fine, but
he suspended the fine in its entirety. Judge Card did, however,
order Brueggeman to perform 500 hours of community work. He also
ordered Brueggeman to pay $8,000 restitution to the State, which
amounted to less than one-third of the State's costs in pursuing the
paternity action and defending itself against Brueggeman's false
accusations of harassment.
Analysis of Brueggeman's sentence under the guidelines
established in State v. Jackson
Brueggeman's sentence a suspended imposition of sentence
with no jail time is a "probationary" sentence for purposes of
the Jackson guidelines. Accordingly, the superior court should not
have imposed this sentence unless Brueggeman's case was
"significantly mitigated in terms of both the offender and the
offense." [Fn. 15]
As explained above, Judge Card found that Brueggeman was
an atypically mitigated offender a "naive, unsophisticated kid"
who engaged in "stupid" youthful misdeeds that were unlikely to be
repeated. We have our doubts about this characterization of
Brueggeman as an offender.
For more than a year, Brueggeman engaged in repeated acts
of fraud and perjury in order to escape his financial obligation to
his child. He may have been ignorant of how DNA testing was
conducted, but there is no reason to doubt that he understood what
consequences his actions would have on his child, the child's
mother, and the state officials who were trying to see that justice
was done.
Brueggeman did not give way to impulse on a single
occasion. Rather, he committed a series of serious felonies over
the course of a year. Finding himself in trouble, he repeatedly
lied, he repeatedly presented false evidence (through his friend,
Hood), and he suborned perjury. The testimonials of his friends and
his family attest that this is uncharacteristic behavior for
Brueggeman. But the record of Brueggeman's actions might cause a
reasonable person to conclude that, given similar circumstances in
the future, Brueggeman would be tempted to commit similar crimes.
Moreover, even accepting Judge Card's characterization of
Brueggeman, Brueggeman should not have received a probationary
sentence. Under the Jackson guidelines, in order to impose a
probationary sentence, Judge Card was obliged to find not only that
Brueggeman was a significantly mitigated offender but also that
Brueggeman's offense was significantly mitigated. Although Judge
Card concluded that Brueggeman was a significantly mitigated
offender, he did not find that Brueggeman's offense was
significantly mitigated. In fact, as explained above, Judge Card
found the opposite. The judge rejected the contention that
Brueggeman's offense was among the least serious within the
definition of perjury. Instead, he declared that Brueggeman's
offense placed "[t]he entire child support system ... under
assault."
True, Judge Card later declared Brueggeman's case was "the
kind of case [that] rings out for a probationary sentence ...
involving less than 90 days [of imprisonment]." But the judge's
remarks appear to be based on a misconstruction of the Jackson
guidelines.
Judge Card declared that, under Jackson, a probationary
sentence was "appropriate for a first-time offender [who] has no
criminal record." This is incorrect. All of the Jackson benchmark
ranges are premised on the fact that the offender before the court
is a first felony offender. While the absence of a misdemeanor
record may conceivably be a mitigating circumstance under Jackson,
it is not sufficient to trigger a presumption that the offender
should receive a probationary sentence.
Judge Card also declared, just before he pronounced
sentence, that Brueggeman's case was "significantly mitigated." As
explained, this statement is in conflict with the judge's earlier
finding at Hood's sentencing a finding that the judge incorporated
by reference at Brueggeman's sentencing. But even if Judge Card had
truly viewed Brueggeman's offense as "significantly mitigated," the
record does not support this characterization.
Brueggeman induced Hood, a mentally impaired friend, to
offer false evidence so that Brueggeman could avoid a determination
of paternity. Over the course of the next year, Brueggeman
repeatedly committed perjury to cover up this fraud. When his lies
were questioned in court, Brueggeman induced Hood to commit perjury
on his behalf, and he also induced Hood to offer false evidence a
second time.
Moreover, Brueggeman was an accomplice in a letter-writing
campaign addressed to numerous state legislators. Although
Brueggeman did not compose or personally send these letters, he
approved their content before they were sent. Brueggeman knew that
these letters falsely accused state officials in the CSED and the
Attorney General's Office of harassing him and abusing their
authority. He also knew that the aim of this campaign was to exert
enough political pressure on the CSED and the Attorney General's
Office to make them stop their investigation. That is, Brueggeman
understood that if the letter-writing campaign were successful, he
might get away with his perjury and his fraud.
Judge Card apparently concluded that Brueggeman's actions
were the product of immaturity and fear. But even so, this does not
make Brueggeman's crimes "significantly mitigated." In Huff v.
State, [Fn. 16] a real estate broker committed perjury to avoid
revealing that he had embezzled a client's funds. [Fn. 17] The
supreme court found that the defendant's perjury had been due to
"weak character and fear ... rather than malice or greed," but the
court nevertheless upheld a prison sentence of 3 years to serve.
[Fn. 18]
Brueggeman committed a string of felonies over the course
of a year. He repeatedly perjured himself in order to defeat the
paternity case against him. In Machado v. State, [Fn. 19] we
affirmed the superior court's conclusion that the defendant's
perjury was among the most serious because the defendant's
falsehoods related to a material issue in the case and the defendant
lied in an attempt to defeat the case against him. [Fn. 20] The
same is true in Brueggeman's case.
Moreover, Brueggeman induced Hood to offer false evidence
on two occasions, and he also suborned perjury from Hood conduct
which, under Boyles v. State, [Fn. 21] is another aggravating factor
in a perjury prosecution. [Fn. 22] Finally, Brueggeman tried to
bring political pressure to bear against government officials so
that they would stop seeking the truth.
In sum, Brueggeman's course of conduct is not a
"significantly mitigated" instance of perjury. Any finding to the
contrary would be clear error.
Thus, even assuming that Brueggeman was an offender with
exceptional potential for rehabilitation, Brueggeman's probationary
sentence is still improper under the Jackson guidelines. To support
a probationary sentence a sentence entailing less than 90 days
to serve both the offender and the offense must be significantly
mitigated. As just explained, Brueggeman's offense was not
significantly mitigated. Judge Card therefore should not have given
Brueggeman a probationary sentence.
We re-affirm the Jackson guidelines for probationary
sentences, and we disapprove Brueggeman's sentence because it
violates those guidelines
In his brief to this court, and as reiterated at oral
argument, Brueggeman recognizes that the record might not support
a finding that his conduct was significantly mitigated. Brueggeman
therefore asks us to uphold Judge Card's sentencing decision by
repudiating the Jackson sentencing guidelines.
Brueggeman relies on the Alaska Supreme Court's decision
in State v. Wentz. [Fn. 23] In Wentz, the supreme court disapproved
a sentencing guideline established by this court because the
guideline imposed "an artificial ceiling" on a sentencing judge's
discretion a ceiling that "limit[ed] a large class of offenses
to the lower end of the sentencing spectrum" established by the
legislature. [Fn. 24] The supreme court declared that the range of
reasonable sentences for a particular offense must be determined "by
an examination of the particular facts of the individual case in
light of the total range of sentences authorized by the legislature
for the particular offense." [Fn. 25]
Conceivably, the top range of the Jackson guidelines might
be attacked as being inconsistent with Wentz. The legislature has
established a sentencing range of 0 to 10 years for class B felonies
but, under Jackson, first felony offenders convicted of a class B
felony will almost always receive sentences of 6 years or less to
serve. [Fn. 26] (We note, however, that even after Jackson, we have
approved sentences of up to 10 years to serve for a first felony
offender convicted of a class B felony. [Fn. 27])
But such a critique would not help Brueggeman, for he is
not attacking the top benchmark range established in Jackson.
Instead, Brueggeman is attacking the Jackson guideline concerning
probationary sentences.
If, as Brueggeman contends, the Jackson guidelines must
be thrown out because they artificially restrict a first felony
offender's sentence to a narrower range than the 0 to 10 years
established by the legislature, it would become harder, not easier,
to justify a probationary sentence. Under Brueggeman's proposal,
a sentencing judge who desired to impose no jail time on a first
felony offender convicted of a class B felony would have to explain,
not why the defendant's sentence should fall at the very bottom of
a 0- to 6-year range, but rather why the defendant's sentence should
fall at the very bottom of a 0- to 10-year range.
This would be a more difficult task. For, as the supreme
court explained, the basic principle underlying Wentz is that
sentencing discretion must be exercised with an eye toward the
entire range of authorized sentences with "the upper range of the
[sentencing] spectrum ... reserved for more serious offenses and
offenders, [and sentences] in the lower end [of the spectrum
reserved] for less grave criminal offenders and criminal conduct."
[Fn. 28] If Brueggeman's sentence were to be assessed with an eye
toward the entire sentencing range of 0 to 10 years established for
class B felonies that is, if the range of sentences were nearly
twice as great then it logically follows that the number of
offenders deserving to serve no jail time at all would be
correspondingly smaller.
But we need not speculate on this matter further because
we are convinced that the Jackson guidelines do not violate Wentz.
The Jackson benchmark sentencing range for a typical to moderately
aggravated offense is based on the rule in Austin. [Fn. 29] That
is, for all but exceptionally aggravated cases, a first felony
offender convicted of a class B felony should receive a more
favorable sentence than the 4-year presumptive term established by
the legislature for a second felony offender convicted of a class
B felony. [Fn. 30] The supreme court in Wentz specifically approved
the Austin rule. [Fn. 31] We therefore believe that the Jackson
benchmark ranges are consonant with the supreme court's decision in
Wentz.
In particular, we re-affirm the Jackson guideline for
probationary sentences, the guideline which specifies that an
offender convicted of a class B felony should receive at least 90
days to serve unless the case is exceptionally mitigated
"significantly mitigated in terms of both the offender and the
offense." [Fn. 32] As we stated in Jackson, when the legislature
has determined that a particular crime is serious enough to be
classified as a B felony, then even though a defendant has excellent
prospects for rehabilitation, if the defendant's conduct is typical
of the conduct encompassed in the definition of the offense, a
sentence of at least 90 days' imprisonment will still be necessary
to demonstrate the seriousness of that conduct and to satisfy the
sentencing goal of condemning the criminal act and reaffirming
societal norms. [Fn. 33]
We acknowledge, as we did in State v. Hernandez, [Fn. 34]
that sentencing decisions are undeniably complex and that they
inevitably involve a large measure of subjective judgment. [Fn. 35]
But if we are to attain the twin goals of sentencing codified in AS
12.55.005 the attainment of reasonable uniformity and the
elimination of unjustified disparity then
our legal system [must be] committed to the
notion that sentencing is ultimately a rational process that
sentences ought to be based not on the sentiment of the moment or
on some inarticulable predilection of the [sentencing judge], but
on sound reasons based in law, reasons capable of being articulated.
[[Fn. 36]]
To this end, Jackson requires that when a defendant has committed
a class B felony, the defendant should not receive a probationary
sentence the least severe sentence possible unless both the
offender and the offense are exceptionally mitigated.
Brueggeman's offense was not mitigated. Thus, even though
he might have excellent prospects for rehabilitation, he should not
have received a probationary sentence. Accordingly, we disapprove
Brueggeman's sentence.
This is not to say that we disapprove Judge Card's
decision to grant Brueggeman a suspended imposition of sentence.
As we noted in Hernandez:
Although ... a suspended imposition of sentence
is usually associated with a particularly mitigated offense, we do
not suggest that suspended impositions of sentence should invariably
be deemed to result in a more lenient sentence or that their use is
categorically limited to mitigated cases.[ [Fn. 37]]
We disapproved the sentence in Hernandez not because
the superior court granted the defendant a suspended imposition of
sentence but because the superior court granted "a suspended
imposition of sentence in combination with a relatively brief term
of incarceration and [allowed the defendant to substitute] community
service in lieu of two-thirds of the jail term that the court
imposed." [Fn. 38] Brueggeman's sentence is flawed for the same
reason.
Although a sentencing judge is empowered to require a
defendant to serve time in jail as a condition of a suspended
imposition of sentence, [Fn. 39] Judge Card did not require
Brueggeman to serve any jail time. We acknowledge that Judge Card
did require Brueggeman to perform 500 hours of community service
(equivalent to 62« days of work at 8 hours per day). But in
Jackson we held that a similar sentence (i.e., a sentence that did
not require the defendant to serve any time in jail) was unlawfully
lenient even though it required 1,000 hours of community work
twice the amount required of Brueggeman. We explained that
the language of AS 12.55.055(d) makes it
reasonably clear that the legislature did not regard community work
as the functional equivalent of incarceration in all situations.
... [W]e conclude that community work cannot properly be relied on
to replace jail time altogether when the circumstances surrounding
an offender's conviction for a class B felony, and the consequent
need to emphasize community condemnation, ... require the imposition
of a nonprobationary term.[ [Fn. 40]]
In such cases, we declared, a sentencing court's decision
to completely replace incarceration with community work "would
unduly depreciate the seriousness of the offense and underemphasize
the community's condemnation of the offender's misconduct." [Fn.
41] Just as we disapproved 1,000 hours of community work (the
equivalent of 125 days) as a complete substitute for incarceration
in Jackson, we disapprove Brueggeman's 500 hours of community work
as a complete substitute for the incarceration required for his
offense under the Jackson guidelines.
We note that Jackson does not preclude substitution of
community service for a portion of the required incarceration. We
further note that, under AS 12.55.015(a)(3), a sentencing court is
authorized to allow a defendant to serve a term of imprisonment in
periodic installments, or seasonally, so as not to jeopardize the
defendant's livelihood. Conceivably, Judge Card might have used
these alternatives to fashion a sentence that would allow Brueggeman
to remain with his family and maintain his employment, yet at the
same time satisfy the sentencing goals of deterrence and community
condemnation.
But Brueggeman's sentence, as actually imposed, fails to
satisfy these sentencing goals. As explained in Jackson, when a
person (even a first offender) commits a class B felony, the
seriousness of the crime requires a non-probationary sentence in all
but the most mitigated instances instances in which both the
offender and the offense are significantly mitigated. Brueggeman's
offense is not mitigated, and for this reason he should not have
received a probationary sentence. Accordingly, we DISAPPROVE the
sentencing decision of the superior court.
COATS, Chief Judge, concurring.
The supreme court has cautioned this court to not apply
sentencing guidelines too strictly. [Fn. 1] In light of this, our
guidelines in Jackson [Fn. 2] for determining when a sentence is too
lenient appear to me to be suspect. Most of our guidelines are
based upon statutory interpretation [Fn. 3] or a careful analysis
of former sentencing decisions. [Fn. 4] The lower limit guidelines
in Jackson are not based on either they are uniquely court-created
guidelines. Therefore, I am reluctant to join with the majority's
continued endorsement of these guidelines.
That having been said, we do have substantial case law
that establishes, at least barring an exceptional case, that
defendants should spend at least some time in jail for serious
felony offenses. [Fn. 5]
I respect Judge Card's decision to emphasize Brueggeman's
rehabilitation in imposing sentence. But in light of Brueggeman's
aggravated perjury offense, the court was required to impose some
period of incarceration to reflect the seriousness of the offense.
The only exception would be if the court found that this was one of
those "truly exceptional cases [where] specific circumstances might
warrant the conclusion that even a relatively brief period of
incarceration would substantially jeopardize an offender's prospects
for rehabilitation." [Fn. 6] It does not appear that Judge Card did
make or could have made this finding in this case. I accordingly
concur in the decision concluding that the sentence imposed was too
lenient.
FOOTNOTES
Footnote 1:
When the state appeals a sentence as too lenient but the
defendant does not appeal the sentence as excessive, we are not
authorized to increase the sentence. We may only "express [our]
approval or disapproval of the sentence and [our] reasons" for doing
so. AS 12.55.120(b). See also State v. Sykes, 891 P.2d 232, 233
(Alaska App. 1995).
Footnote 2:
AS 11.46.600(a).
Footnote 3:
AS 11.56.610(a)(2), (3).
Footnote 4:
AS 11.56.200(a).
Footnote 5:
AS 11.51.120(a); AS 11.31.100(a).
Footnote 6:
See AS 12.55.035(b)(2); AS 12.55.125(d).
Footnote 7:
See AS 12.55.125(d).
Footnote 8:
776 P.2d 320, 326-27 (Alaska App. 1989).
Footnote 9:
627 P.2d 657 (Alaska App. 1981).
Footnote 10:
See id. at 657-58.
Footnote 11:
See 776 P.2d at 326.
Footnote 12:
Id.
Footnote 13:
Id. at 327.
Footnote 14:
See Smith v. State, 711 P.2d 570, 571-72 (Alaska App. 1985).
Footnote 15:
Jackson, 776 P.2d at 327.
Footnote 16:
598 P.2d 928 (Alaska 1979).
Footnote 17:
See id. at 931.
Footnote 18:
Id. at 936.
Footnote 19:
797 P.2d 677 (Alaska App. 1990).
Footnote 20:
See id. at 690.
Footnote 21:
647 P.2d 1113 (Alaska App. 1982).
Footnote 22:
See id. at 1119-20.
Footnote 23:
805 P.2d 962 (Alaska 1991).
Footnote 24:
Id. at 965.
Footnote 25:
Id. (Emphasis in the original).
Footnote 26:
See 776 P.2d at 326 (setting a benchmark sentencing range of
4 to 6 years to serve for a first felony offender who commits an
"exceptionally aggravated" class B felony).
Footnote 27:
See, e.g., Davis v. State, 793 P.2d 1064, 1066 (Alaska App.
1990).
Footnote 28:
805 P.2d at 966.
Footnote 29:
See Jackson, 776 P.2d at 326 (citing Austin, 627 P.2d at 657-
58).
Footnote 30:
See id.
Footnote 31:
See Wentz, 805 P.2d at 966-67.
Footnote 32:
Jackson, 776 P.2d at 327 (emphasis added).
Footnote 33:
See 776 P.2d at 326-37; AS 12.55.005(6).
Footnote 34:
877 P.2d 1309 (Alaska App. 1994).
Footnote 35:
See id. at 1316.
Footnote 36:
Id.
Footnote 37:
Id. at 1314 n.7.
Footnote 38:
Id.
Footnote 39:
See AS 12.55.086.
Footnote 40:
Jackson, 776 P.2d at 329.
Footnote 41:
Id.
FOOTNOTES (Concurrence)
Footnote 1:
See State v. Hodari, 996 P.2d 1230 (Alaska 2000); State v.
Wentz, 805 P.2d 962 (Alaska 1991).
Footnote 2:
776 P.2d 320, 326-27 (Alaska App. 1989).
Footnote 3:
See Austin v. State, 627 P.2d 657 (Alaska App. 1981).
