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Fitzgerald v. State (03/08/2002) ap-1791
Fitzgerald v. State (03/08/2002) ap-1791
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
ROBERT C. FITZGERALD, )
) Court of Appeals No.
A-7895
Appellant, )
Trial Court Nos. 3AN-99-7499,
) 3AN-87-5075, and 3AN-87-
2928 Cr
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1791 March 8, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, John R. Lohff,
Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Donald
R. Kitchen, Assistant District Attorney,
Susan A. Parkes, District Attorney,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Robert C. Fitzgerald was convicted of first-degree
sexual abuse of a minor in December 2000. Because Fitzgerald was
a third felony offender for presumptive sentencing purposes, he
faced a 25-year presumptive term of imprisonment for this crime.
Based on Fitzgeralds criminal record and on the States proof of
five aggravating factors, Superior Court Judge pro tempore John
R. Lohff concluded that Fitzgerald was a worst offender, and he
sentenced him to the maximum penalty for this offense: 30 years
imprisonment. In addition, Judge Lohff revoked Fitzgeralds
probation from three prior sexual felonies and imposed 8 years of
previously suspended jail time. Thus, Fitzgerald received a
composite term of 38 years to serve.
Fitzgerald now appeals this sentence, contending that
it is excessive. But as we explain in this opinion, the record
supports Judge Lohffs conclusion that Fitzgerald is a mature
offender whose sexual abuse of children is compulsive or
ingrained, an offender who will constitute a danger to the
community for the rest of his life. We therefore affirm
Fitzgeralds sentence.
Fitzgeralds 1988 convictions
In 1988, Fitzgerald was convicted of four
sexual offenses involving four different child victims:
(1) attempted first-degree sexual assault1 for trying
to rape a 14-year-old girl; (2) second-degree sexual
abuse of a minor2 for engaging in sexual contact with a
7-year-old girl over the course of approximately nine
months; (3) attempted first-degree sexual abuse of a
minor3 for trying to induce an 8-year-old girl to
perform fellatio on him; and (4) another count of
second-degree sexual abuse of a minor for engaging in
sexual contact with an 8-year-old girl over the course
of a year.
Fitzgerald pleaded no contest to these four
felonies after negotiating a plea agreement with the
State in which he was promised a composite sentence of
20 years imprisonment with 8 years suspended 12 years
to serve.
The investigation of these crimes was
triggered when Fitzgeralds daughter revealed that
Fitzgerald had sexually abused her from the time she
was 4 years old until she was 10 or 11. (Fitzgerald
was not charged with sexually abusing his daughter; the
four charges described in the previous paragraph
involved different girls.) When Fitzgeralds wife
confronted him with their daughters accusations,
Fitzgerald confessed that he had engaged in sexual
relationships with several underage girls.
From 1976 to 1981, Fitzgerald was a math
teacher and athletics coach at East High School in
Anchorage. Fitzgerald told his wife that he had had
sexual intercourse with two 14-year-old students;
sometimes, he and his students had sex in his
classroom. In the fall of 1981, another teacher
discovered Fitzgerald having sex with a student in a
classroom. Apparently, Fitzgerald was neither charged
nor disciplined for his sexual relations with his
students, but shortly afterwards he began taking steps
toward retirement. He received a medical retirement
from the Anchorage School District at the end of
November 1981.
Fitzgerald also owned several rental
properties in Anchorage. As a landlord, he rented
homes to single mothers with female children, and then
he groomed the children for sexual relationships. All
four victims involved in Fitzgeralds 1988 convictions
were children of his tenants. In addition, Fitzgerald
was tutoring the fourth victim in math during the year-
long sexual abuse. Fitzgerald told his wife that he
was in love with this 8-year-old girl.
As explained above, Fitzgerald was promised a
total sentence of 12 years to serve in exchange for his
no contest pleas. Nevertheless, the probation officer
who conducted the pre-sentence investigation took the
unusual step of suggesting that this 12-year sentence
seemed unjustifiably lenient:
The defendant is a retired math teacher
from the Anchorage School District. ... In
addition to the authority the defendant
commanded as a school teacher, he also has
been [the landlord] of a number of rental
units ... . He has used that position of
authority and trust to victimize a number of
young girls. He has a pattern of abusing the
children of single mothers. The defendant
has enticed the children with rewards of new
clothes, ice cream, and other things the
children might find irresistible, all of
this, for ... sexual gratification. ...
In my opinion, the defendant is in the
worst offender category, considering the
number of victims involved, the period of
time the offense[s] occurred and the
calculated premeditation the defendant used
in cho[o]sing his victims. When [one
considers that] the crimes for which the
defendant [pleaded no contest] carry a
maximum sentence of 60 years, 12 years [to
serve] does not seem long enough, especially
when 4 years of that will be [awarded to him
as] good time.
Despite the pre-sentence
investigators skepticism, the superior court
accepted the plea agreement and imposed the
agreed-upon sentence in January 1988.
Fitzgerald commenced serving his 12-year
prison term.
In 1990, in the middle of his
Alaska prison sentence, Fitzgerald was
separately convicted of child abuse and
attempted sexual molestation of a child in
Arizona. This conviction involved the same
victim as one of the Alaska charges; the
offense occurred during a month when
Fitzgerald accompanied the child and her
mother to Arizona. The Arizona court
sentenced Fitzgerald to 5 years imprisonment
for this crime, but Fitzgerald immediately
returned to Alaska and resumed serving his
Alaska sentence.
While serving his sentence,
Fitzgerald participated in the sexual
offender treatment program at Hiland Mountain
Correctional Center. The record does not
indicate how the staff of that program
evaluated his progress.
Through a combination of pre-
sentencing credit for time served and good
time credit, Fitzgerald was released on
concurrent parole and probation in May 1994.
Fitzgeralds current conviction
In August 1999, the grandmother of a 6-year-
old girl notified the Division of Family and Youth
Services that she believed her granddaughter was
being sexually abused. The 6-year-old had told
her grandmother that Bud i.e., Fitzgerald had
taught her how to kiss by putting her tongue in
the other persons mouth. She also said that
Fitzgerald had touched her genital area.
The girl subsequently told a police
investigator that Fitzgerald would have her take
off her clothes, and he would take his clothes off
too. Fitzgerald would then put his fingers inside
her genitals and her anus. Fitzgerald would also
sometimes lie on top of her and try to put his
penis inside her. The girl said that white sticky
stuff would come out of Fitzgeralds penis.
These acts of sexual abuse occurred over the
course of seven months, on occasions when
Fitzgeralds girlfriend was babysitting the 6-year-
old girl. (Apparently, Fitzgeralds girlfriend
also participated in the sexual abuse of the
child.)
Fitzgerald was originally indicted on several
counts of first-degree sexual abuse of a minor
(sexual penetration) and second-degree sexual
abuse of a minor (sexual contact). However, he
ultimately agreed to plead no contest to a single
count of first-degree sexual abuse, and the other
charges were dismissed.
Fitzgeralds sentence
Fitzgerald was 59 years old at the time of
his sentencing hearing. As already noted, he had four
prior felony convictions in Alaska (as well as a prior
felony conviction from Arizona). He was therefore a
third felony offender for presumptive sentencing
purposes.4 As a third felony offender, Fitzgerald
faced a 25-year presumptive term for first-degree
sexual abuse of a minor.5
Judge Lohff found that the State had proved
five of the aggravating factors listed in AS
12.55.155(c): aggravator (c)(5) that Fitzgeralds
victim was particularly vulnerable; aggravator (c)(10)
that Fitzgeralds conduct was among the most serious
within the definition of the crime; aggravator (c)(15)
that Fitzgerald had more than two prior felony
convictions; aggravator (c)(20) that Fitzgerald had
committed his current offense while on probation from
his 1988 felony convictions6; and aggravator (c)(21)
that Fitzgerald had a history of similar offenses. No
mitigating factors were proved. Thus, the 25-year
presumptive term was effectively the minimum sentence
that Judge Lohff could impose.
Fitzgeralds attorney asked Judge Lohff to
impose 25 years to serve with some additional time
suspended. However, Judge Lohff concluded that a more
severe sentence was required.
The judge found that Fitzgerald was a worst
offender.7 In reaching this conclusion, Judge Lohff
noted that Fitzgerald had used his position as a
teacher and his position as a landlord to further his
crimes; he premeditatedly sought victims from among his
students and his tenant families. In addition, Judge
Lohff remarked on Fitzgeralds recidivism and his
failure to benefit from sex offender treatment. In
fact, Judge Lohff noted, Fitzgerald pursued the victim
in this case at the same time that he was participating
in sex offender treatment. All of this led Judge Lohff
to conclude that Fitzgerald was a particularly
dangerous offender.
Judge Lohff concluded that Fitzgerald should
receive the maximum sentence 30 years imprisonment
for his current offense of first-degree sexual abuse of
a minor. And, because Fitzgerald posed a high danger
to the public, Judge Lohff exercised his authority
under AS 12.55.115 and declared that Fitzgerald would
not be eligible for discretionary parole during this 30-
year prison term.
(Even without Judge Lohffs action, Fitzgerald
would not be eligible for discretionary parole until he
served the 25-year presumptive term plus one-fourth of
the added 5 years. See AS 33.16.090(c) and AS
33.16.100(c)-(d).)
Finally, also because of the danger that
Fitzgerald posed to the public, Judge Lohff revoked
Fitzgeralds probation from the 1988 convictions and
imposed the 8 years that had been suspended earlier.
Thus, all told, Fitzgerald received a composite
sentence of 38 years imprisonment.
Why we affirm Fitzgeralds sentence
In Lacquemont v. State8 and Farmer v. State9,
this court held that the presumptive term for a
defendants most serious offense is a sentencing
benchmark that should not be exceeded absent some good
reason.10 Relying on these cases, Fitzgerald argues
that his composite sentence should not have exceeded
the 25-year presumptive term for his current offense.
But Judge Lohff found five aggravating factors.
Moreover, the judge explicitly found, based on
Fitzgeralds record, that Fitzgerald was a worst
offender. Thus, Judge Lohff was authorized to consider
(and impose) any sentence up to the 30-year maximum
term of imprisonment.11
Fitzgerald argues in the alternative that,
even if a 30-year sentence was justified, Judge Lohff
erred in imposing a composite of 38 years. Fitzgerald
relies on the Mutschler rule that a defendants
composite sentence should normally not exceed the
maximum sentence for the defendants most serious
offense.12 But under the Mutschler rule, a sentencing
judge is allowed to exceed the normal ceiling if the
judge finds that a more severe sentence is necessary to
protect the public.13 Although Judge Lohff did not
refer to Mutschler by name, he expressly declared that
considerations of public safety required him to revoke
Fitzgeralds probation from the 1988 felonies. He
stated that a consecutive 8-year term was needed to
protect the public and to ensure that [Fitzgerald] is
not [able] to pursue any other victims.
Fitzgeralds composite 38-year sentence is
among the most severe that we have reviewed for sexual
abuse of minors. However, Fitzgerald is a mature
defendant who has repeatedly demonstrated a deep-seated
compulsion to engage in sexual relations with young
children. Fitzgerald was 59 years old at the time of
the sentencing hearing. His sexual abuse of children
as a father, as a teacher, and as a landlord spans
twenty-five years, beginning in the mid-1970s. During
this quarter-century, Fitzgerald has abused and
exploited numerous young children, interrupted only by
the prison sentence from his 1988 convictions. He has
undergone sex offender treatment, but to little avail.
In the past, this court has upheld lengthy
sentences for defendants convicted of sexual offenses
sentences exceeding the maximum prison term for the
defendants most serious offense in cases involving
middle-aged men with engrained patterns of sexual
abuse.14 For example, in Kirlin v. State, 779 P.2d
1251 (Alaska App. 1989), we upheld a composite sentence
of 12 years to serve for a defendant convicted of two
counts of second-degree sexual abuse of a minor a
class B felony with a maximum term of 10 years
imprisonment.15
More to the point, perhaps, are our decisions
in Ross v. State16, Schuenemann v. State17, and Adams
v. State18, where we upheld virtual lifetime sentences
for mature sexual offenders who demonstrated ingrained,
compulsive criminal [behavior].19 Fitzgeralds case
fits this description.
It is true that Ross, Schuenemann, and Adams
all involved defendants who engaged in violent sexual
assault. But the legislature has categorized first-
degree sexual abuse of a minor in the same class of
felony as first-degree sexual assault.20 That is, both
offenses are presumptively equally dangerous to the
public welfare and equally deserving of severe
punishment.
(We note, moreover, that Fitzgerald has shown
himself capable of violence in pursuit of his sexual
pleasure; one of his 1988 convictions was for the
attempted rape of a 14-year-old girl.)
For these reasons, we conclude that
Fitzgeralds composite sentence of 38 years imprisonment
is not clearly mistaken.21 Accordingly, the judgement
of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.410(a)(1).
2 AS 11.41.436(a)(2).
3 AS 11.41.434(a)(1).
4 See AS 12.55.185(14).
5 See AS 12.55.125(i)(4).
6 Actually, Fitzgeralds probation expired on May 24, 1999
in the middle of the seven months covered by the charging
document (March through September). However, Judge Lohff
found that this aggravator was proved because the sexual
abuse began and continued for two months while Fitzgerald
was still on probation. Fitzgerald does not challenge this
ruling.
7 See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975);
Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990).
8 644 P.2d 856 (Alaska App. 1982), overruled on other
grounds by Jones v. State, 744 P.2d 410 (Alaska App. 1987).
9 746 P.2d 1300 (Alaska App. 1987).
10 See Farmer, 746 P.2d at 1301.
11 See AS 12.55.155(a); see also Wortham, 537 P.2d at
1120; Napayonak, 793 P.2d at 1062.
12 See Mutschler v. State, 560 P.2d 377, 381 (Alaska
1977); George v. State, 836 P.2d 960, 963-64 (Alaska App.
1992).
13 See George, 836 P.2d at 963.
14 Williams v. State, 928 P.2d 600, 608 (Alaska App.
1996).
15 See AS 11.41.436(b) and AS 12.55.125(d).
16 877 P.2d 777 (Alaska App. 1994).
17 781 P.2d 1005 (Alaska App. 1989).
18 927 P.2d 751 (Alaska App. 1996).
19 Ross, 877 P.2d at 782 (quoting Schuenemann, 781 P.2d at
1009).
20 See AS 11.41.410(b); AS 11.41.434(b); and AS
12.55.125(i).
21 See McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974) (an appellate court is to affirm a sentencing decision
unless the decision is clearly mistaken).
