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Ahvakana v. State (11/1/2002) ap-1841
Ahvakana v. State (11/1/2002) ap-1841
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
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RONALD J. AHVAKANA, )
) Court of Appeals No.
A-8142
Appellant, ) Trial
Court No. 2BA-S01-0034 CR.
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1841 - November 1, 2002]
)
Appeal from the Superior Court, Second Judi
cial District, Barrow, Michael I. Jeffery,
Judge.
Appearances: David Reineke, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Mary E.
Fischer, Assistant District Attorney, Barrow,
Susan A. Parkes, District Attorney,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Ronald Ahvakana was convicted, based upon his plea, of
criminally negligent homicide, a class B felony.1 Superior Court
Judge Michael Jeffery imposed the maximum term of 10 years of
imprisonment. Ahvakana appeals to this court, arguing that the
sentence is excessive. We remand.
On Sunday, October 24, 1999, Ahvakana called to invite
his cousin over to his residence to drink. E.S. answered the
phone and told Ahvakana that her brother was out of town but that
she would come over to his place to drink. E.S. went over to
Ahvakanas residence and drank a large quantity of alcoholic
beverages while watching movies. According to Ahvakana, E.S.
indicated an interest in sexual activity and pulled down her
pants. She then passed out. Ahvakana stated that he believed
that she had not really passed out and put his fingers into her
vagina and rectum. Ahvakana felt blood but concluded that E.S.
had started her menstrual cycle. At some point in the evening,
Ahvakana went to sleep. In the morning, he discovered that E.S.
was lying on the floor next to his bed dead. There was a
significant amount of blood on and under her body. After several
minutes of cleaning up the blood from E.S. and himself, Ahvakana
called the police.
The police found multiple scratches and bruises on E.S.
She had human bite marks on her back, buttocks, and inner thigh.
She was lying in a pool of blood, which had come from the pelvic
area of her body. The doctor who performed the autopsy found a
massive tear to E.S.s rectal and anal area and concluded that
E.S. had died from bleeding related to the tear. He concluded
that the initial tear had been caused by a foreign object.
The State charged Ahvakana with murder in the second
degree and sexual assault in the second degree. Ahvakana
ultimately entered a plea to criminally negligent homicide.
Ahvakana was thirty-seven years old at the time of
sentencing. In 1990, he had been convicted of two counts of
assault in the fourth degree, a class A misdemeanor, for
physically abusing his daughters. Ahvakana was sentenced to a
year suspended sentence, and the convictions were set aside in
1994. In 2000, Ahvakana was convicted of sexual abuse of a minor
in the second degree, a class B felony, for having sexual
intercourse with a minor under the age of sixteen. The court
sentenced Ahvakana to 5 years with 2 years suspended on this
offense. Ahvakana was on release on this offense at the time he
committed the homicide. But because he had not been convicted of
the sexual abuse of a minor charge at the time he had committed
the homicide, Ahvakana was a first felony offender for purposes
of presumptive sentencing. Ahvakanas sentence for criminally
negligent homicide is consecutive to his sexual abuse of a minor
sentence.
Criminally negligent homicide is a class B felony with
a maximum sentence of 10 years imprisonment.2 The presumptive
term for a second felony conviction is 4 years and the
presumptive term for a third felony conviction is 6 years.3
Judge Jeffery found that four aggravating factors applied to
Ahvakanas offense: (1) that Ahvakana employed a dangerous
instrument in furtherance of the offense (Ahvakana conceded that
E.S.s injuries, whether caused by a fist or another object, were
sufficiently serious to imply that a dangerous instrument was
used); (2) that Ahvakana should have known that E.S. was
particularly vulnerable; (3) that the conduct constituting the
offense was among the most serious conduct included in the
definition of the offense; and, (4) that Ahvakana was on release
on another felony charge.4
In sentencing Ahvakana, Judge Jeffery concluded that
Ahvakana had committed a particularly serious criminally
negligent homicide because his crime was actually closer to a
manslaughter case. Judge Jeffery reasoned that because of
Ahvakanas extreme intoxication, his culpable mental state went
beyond criminal negligence and actually constituted recklessness,
thus supporting a manslaughter charge. He pointed out that, at a
minimum, Ahvakana should have been aware, and would have been
aware but for his intoxication, with the amount of blood that was
flowing from E.S., that he needed to summon aid rather than
continue to take sexual liberties. He pointed out that E.S.s
injuries seemed to support the conclusion that Ahvakana put his
fist and arm into E.S.s rectum or vagina while he was excited or
drunk and caused a huge tear which caused E.S.s death.
We set out guidelines for sentencing first felony
offenders convicted of class B felonies in State v. Jackson.5
In Jackson, we stated:
1. A typical offender committing a typical
or moderately aggravated offense should
receive an unsuspended term of a year or more
to serve. The upper limit in such cases
should be four years, reflecting our decision
in Austin v. State, 627 P.2d 657, 657-58
(Alaska App. 1981). In Austin, we indicated
that first offenders should normally receive
a sentence more lenient than the presumptive
term for a second felony offender.
2. For an offense that is exceptionally
aggravated one that involves the existence
of significant statutorily specified
aggravating factors or other extraordinarily
aggravated circumstances a term of up to six
years of unsuspended incarceration, the
presumptive term for a third felony offender,
would be justified.6
Therefore, the sentence which Judge Jeffery imposed falls outside
the guidelines which we set out in Jackson. Judge Jeffery did
not address the Jackson guidelines.
In imposing sentence, Judge Jeffery did rely on the
case of Rosendahl v. State.7 The defendant in Rosendahl was
convicted of negligent homicide and failure to render assistance
under the former criminal code.8 Judge Jeffery pointed out that
Rosendahl had received a sentence of 10 years of imprisonment,
which had been upheld by the supreme court. But Rosendahl is
distinguishable.
Rosendahl, driving while intoxicated, struck and killed
a woman and then left the scene.9 Rosendahl had two prior
convictions for operating a motor vehicle while under the
influence of intoxicating beverages as well as five speeding
convictions within a three and one-half-year period.10 The court
emphasized the dangers of driving while intoxicated and
Rosendahls record of these prior offenses in upholding his 10-
year sentence.
The important distinction between Rosendahl and the
current case is that Rosendahl was sentenced under a different
statutory scheme. Under the former criminal code, negligent
homicide was a form of manslaughter and was punishable by a
maximum term of imprisonment of 20 years.11 Therefore, Rosendahl
was sentenced under a different statutory scheme and his sentence
was only half of the statutory maximum. It is therefore not
persuasive authority for upholding the sentence in the present
case.
Furthermore, the supreme court has consistently held
that a sentencing court should not impose a maximum sentence
unless the defendant can be characterized as a worst offender.12
Although he imposed a maximum sentence, Judge Jeffery did not
find that Ahvakana was a worst offender.
We accordingly conclude that Judge Jefferys sentencing
remarks are insufficient to support the sentence which he
imposed. We VACATE the sentence and REMAND for resentencing.
_______________________________
1 AS 11.41.130(a).
2 AS 11.41.130(b); AS 12.55.125(d).
3 AS 12.55.125(d)(1), (2).
4 AS 12.55.155(c)(4), (5), (10), (20).
5 776 P.2d 320, 326-27 (Alaska App. 1989).
6 Id. at 326 (footnote omitted).
7 591 P.2d 538 (Alaska 1979).
8 Id.
9 Id. at 539.
10 Id.
11 Id. at 538 n.1, 540 n.7.
12 Hintz v. State, 627 P.2d 207, 210 (Alaska 1981).
