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Phelps v. State (7/23/2010) ap-2272

                             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


EUGENE CLAYTON PHELPS,             
                                   
                    Appellant,       Court of Appeals No. A-10709
                                    Trial Court No. 3AN-93-4521 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                        No. 2272    July 23, 2010
                                   
          Appeal  from the District Court,  Third  Judi
          cial  District, Anchorage, J. Patrick Hanley,
          Judge.

          Appearances:   Cynthia L. Strout,  Anchorage,
          for   the   Appellant.   James  J.   Fayette,
          Assistant  District Attorney, Anchorage,  and
          Daniel S. Sullivan, Attorney General, Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.

          This case requires us to re-examine and apply the Neal-
Mutschler  rule   the  rule  that,  when  a  defendant  is  being
sentenced  for  two  or  more crimes,  the  defendants  composite
sentence  of imprisonment may not exceed the maximum sentence  of
imprisonment  for  the  defendants single  most  serious  offense
unless  the  sentencing judge affirmatively finds that  a  longer
term   of  imprisonment  is  necessary  to  protect  the  public.
See Neal v. State, 628 P.2d 19,
21 (Alaska 1981); Powell v. State, 88 P.3d 532, 537 & n.
9 (Alaska App. 2004). 
          In  the  present case, the defendant was  convicted  of
four  class  A  misdemeanors, each with a maximum sentence  of  1
years  imprisonment.  Thus, the Neal ceiling  was  1  year.   The
sentencing judge affirmatively found that the need to protect the
public  did  not  require  a  sentence  of  more  than  1   year.
Nevertheless,  the  judge concluded that the facts  of  the  case
required  a more severe sentence  and, accordingly, he  sentenced
the   defendant   to  a  composite  term  of  545   days   (i.e.,
approximately 1 years).
          As  we  explain  in  more detail in  this  opinion,  we
conclude   that  the  facts  of  this  case  provide   sufficient
justification for imposing a more severe composite sentence  than
the  1-year Neal ceiling.  Even though Neal seemingly allows only
one  justification for such a sentence (viz., the need to protect
the   public),  the  Alaska  Supreme  Courts   post-Neal
decisions  show that the court has altered its position regarding
sentencing  benchmark  rules.   In  its  more  recent  sentencing
decisions  in particular, State v. Hodari, 996 P.2d 1230  (Alaska
2000),   State  v.  Bumpus,   820   P.2d   298   (Alaska
1991),  and  State  v.  Wentz,  805  P.2d  962   (Alaska
1991)   the  supreme court has declared  that  appellate
courts  should not place inflexible restrictions on a  sentencing
judges authority based on pre-established criteria.  Instead, the
supreme  court has taken the position that sentencing  benchmarks
serve  only  as  guidelines,  and that  any  sentencing  decision
ultimately  must  be  justified on  the  particular  facts  of  a
defendants  offense and background, evaluated  in  light  of  the
sentencing  criteria codified in AS 12.55.005 and  the  range  of
sentences authorized by the legislature. 
          Based  on  Hodari, Bumpus, and Wentz, we conclude  that
the  Neal  rule must be construed in a manner flexible enough  to
encompass  other compelling justifications for a longer sentence.
And given the facts of the present case (as found by the district
court),  we  conclude that  the  district  court  had  a
compelling justification for imposing a sentence exceeding 1 year
to serve. 

     Underlying facts
     
               In  1994, Eugene Clayton Phelps was on  trial
     for  three  counts  of  aggravated  indecent  exposure,
     former   AS  11.41.460.   This  offense,  a   class   A
     misdemeanor,  was  defined as knowingly  exposing  ones
     genitals  in  the presence of another person  under  16
     years  of age, acting with reckless disregard  for  the
     offensive, insulting, or frightening effect  that  this
     conduct may have.1
               Phelps was charged with exposing himself  and
     masturbating at the bedside of his girlfriends  teenage
     daughter between December 1990 and March 1991, when the
     girl  was  13  and 14 years old.  On the first  day  of
     Phelpss  trial,  the  State  made  an  offer  of  proof
     (outside  the presence of the jury) in support  of  its
     motion  to be allowed to present evidence of other  bad
     acts.   Specifically, the State presented the testimony
     of  the victims older sister, who told the court  that,
     over  the course of several months in 1988, Phelps  had
     masturbated at her bedside and had attempted to  engage
     in sexual penetration with her.  The victims sister was
     15 years old at the time.
               The  day  after the victims sister  presented
     this  in camera testimony, Phelps failed to appear  for
     trial.  His trial continued without him, and Phelps was
     convicted  of  the  three counts of  indecent  exposure
     although, of course, he was not sentenced at that time.
     Nearly  sixteen  years later, Phelps  was  located  and
     taken  into  custody.  At that time, he was tried  for,
     and  convicted  of, misdemeanor failure to  appear,  AS
     12.30.060.
Phelpss sentencing hearing in the district court

          Each  of  Phelpss  four offenses  (the  three
counts  of indecent exposure, and the single  count  of
failure to appear) carried a maximum penalty of 1 years
imprisonment.2   Phelps  was  sentenced  for  all  four
crimes  at  a  consolidated sentencing  hearing  before
District Court Judge J. Patrick Hanley.
          Judge   Hanley   found   that   Phelps    had
masturbated in front of the younger sister  (i.e.,  the
named  victim  in  the three indecent exposure  counts)
approximately  one dozen times, and that  Phelps  would
watch her when she slept.  Judge Hanley also found that
Phelpss crimes took an emotional toll on the victim and
on  her  family.  The victim began wearing  a  swimsuit
when she bathed, so that Phelps would not see her naked
if  he  came into the bathroom, and she affixed a  wind
chime  to her bedroom door, so that she would  know  if
Phelps entered her room during the night.
          Judge  Hanley found that Phelpss conduct  was
among the most serious types of indecent exposure, both
because of the conduct itself and also because  of  its
emotional effect on the victim and the divide  that  it
created  in  the victims family.  Weighing  the  Chaney
sentencing  criteria  now codified  in  AS  12.55.005,3
Judge  Hanley declared that there was no doubt in [his]
mind  that  the ... criteria of community  condemnation
and deterrence of Mr. Phelps requires a ... substantial
jail  sentence,  and [his offense] does constitute  the
worst  offense  of  the  types of [conduct  encompassed
within] indecent exposure.
          Having  found that Phelpss crime of  indecent
exposure  was  among  the  worst  offenses  within  the
definition  of that crime, Judge Hanley then  addressed
the   Neal-Mutschler  rule,  as  interpreted  by  Judge
Singleton  (a  former  judge  of  this  Court)  in  his
concurrence  in  Peruski v. State, 711  P.2d  573,  575
(Alaska App. 1985):
     
          The  Court:  [My finding] leads  us  ...
     next  [to]  the [Neal-]Mutschler  rule.   ...
     [Under   that  rule,]  in  order  to   impose
     consecutive  sentences that  exceed  the  [1-
     year]  maximum sentence for the  single  most
     serious  count,  the  sentencing  court  must
     expressly  find  that the [greater]  term  of
     imprisonment is necessary for the  protection
     of the public[,] ... and [that] the defendant
     can neither be rehabilitated nor deterred  by
     a  shorter  sentence.  ...   [I]ts  a  pretty
     strong rule[, and it can not be satisfied by]
     the  [sentencing] judges perception of a need
     for the deterrence of other wrongdoers or the
     affirmation of community norms.
     
               Judge  Hanley noted that there  was
     no   evidence  that  Phelps  had  engaged  in
     further  sexual  misconduct  indeed,  further
     criminal  activity of any  kind   during  the
     more  than fifteen years between the time  he
               absconded from his trial and the time he was
     caught and arrested.  Based on the fact  that
     Phelps  had  apparently been law-abiding  for
     the   immediately  preceding  fifteen  years,
     Judge Hanley concluded that he could not,  in
     good  faith,  find that Phelps could  not  be
     rehabilitated  or deterred by a  sentence  of
     1 year or less, or that the protection of the
     public required a composite sentence of  more
     than 1 years imprisonment.
               Accordingly,  Judge  Hanley   ruled
     that  even  though Phelpss acts  of  indecent
     exposure were among the most serious offenses
     within  the definition of that crime, Phelpss
     sentences for these three counts of  indecent
     exposure   should  not  cumulatively   exceed
     1 year.
          However,  Judge Hanley then  turned
to  Phelpss  separate offense of  failure  to
appear.
          Judge  Hanley noted that if Phelpss
sentence  for this crime was included  within
the  Neal-Mutschler rule  in other words,  if
the  judge  was  barred  from  giving  Phelps
additional  jail time for this offense,  over
and  above the 1 year that the judge believed
was  the  proper  composite prison  term  for
Phelpss three acts of indecent exposure  then
this result would seemingly conflict with the
doctrine  that  a  defendant should  normally
receive  consecutive jail time for crimes  of
escape  or failure to appear.  See Walton  v.
State, 568 P.2d 981, 986 (Alaska 1977); Hayes
v.  State,  790  P.2d 713, 717  (Alaska  App.
1990).
          Judge Hanley noted that Phelpss act
of  failing  to appear wasnt a garden-variety
failure  to appear at a pre-trial conference,
or  even [at] a trial call.  Instead, Phelpss
failure  to  appear  was  significantly  more
serious   because  (as  Judge  Hanley  found)
Phelps  committed  this offense  after  [his]
trial had begun, [and] after [he] ... hear[d]
what the [other crimes] evidence was, ... and
after he ... reach[ed] the conclusion that it
wasnt looking good for him.
          Judge Hanley concluded that Phelpss
failure  to  appear also was  serious  for  a
separate reason:  the effect that it  had  on
other  people.  Because Phelps  absconded  in
the  middle of trial, he remained unsentenced
(and  his  whereabouts remained unknown)  for
more than 15 years.  Judge Hanley found that,
as  a result of the unfinished status of  the
criminal  prosecution  against  Phelps,   the
emotional  problems that the victim  and  her
sister  experienced as a  result  of  Phelpss
underlying  conduct  (his  acts  of  indecent
exposure) were exacerbated and prolonged.
          Based  on all of this, Judge Hanley
concluded   that  Phelps  should  receive   a
composite  sentence  of  more  than  1  years
imprisonment for the three acts  of  indecent
exposure  and the separate act of failure  to
appear:

     The Court:  [Phelpss] indecent exposures
are  so significant that they require ...  [a
sentence  of]  one year in jail[,  just]  for
those.   ...   [His]  failure  to  appear  is
significant   also.   ...   [But]   if   that
[offense is] governed by [Neal-]Mutschler, it
would  be  as  if nothing ever  happened  [to
Phelps] because of it.  It [would] be [as if]
it   was   never   considered  in   [Phelpss]
sentencing  and  never  reflected   in   [his
sentence].
     .  .  .

     [I   conclude]  that  if  there  is   no
consequence  [to Phelps] for the  failure  to
appear, [that] would frustrate the sentencing
criteria  [codified  in AS  12.55.005].   ...
[It] would have the same effect as if he  had
no conviction for failure to appear.
     .  .  .

     And so, for those reasons, [even though]
the  indecent exposure [sentences] are  bound
by  the  [Neal-]Mutschler rule,  ...  I  dont
think that the failure to appear sentence [is
covered by that rule].  ...  [And] I am going
to  make  [the  failure to  appear  sentence]
consecutive   to   the   indecent    exposure
[sentences] for those reasons.

          Judge  Hanley then sentenced Phelps
to  serve  a total of 365 days on  the  three
indecent  exposure counts, with a consecutive
180 days for the failure to appear count.  In
other  words, Phelps received a  total  of  1
years to serve for his four offenses.

Why we uphold the district courts sentencing decision

     On  appeal,  Phelps argues that Judge  Hanley
violated the Neal-Mutschler rule when he imposed a
composite  sentence  of  more  than  1  year  (the
maximum  sentence for any single  one  of  Phelpss
crimes)  after explicitly finding that a  sentence
of  more  than  1  year was not  required  by  the
sentencing goal of protecting the public.
          Almost  thirty years ago, in Neal  v.  State,
628  P.2d  19  (Alaska 1981), the Alaska Supreme  Court
endorsed  the rule that a sentencing judge  should  not
impose a composite sentence exceeding the maximum  term
of   imprisonment  that  could  be  imposed   for   the
defendants single most serious offense unless the judge
make[s]  a  formal  finding that  confinement  for  the
combined term is necessary to protect the public.   Id.
at 21.
          This  sentencing  rule was derived  from  the
American   Bar  Associations  Standards   Relating   to
Sentencing Alternatives and Procedures (Approved Draft,
1968),    3.4(b)(iv):   Imposition  of  a   consecutive
sentence should require the affirmative action  of  the
sentencing  court.  The court should be  authorized  to
impose a consecutive sentence only after a finding that
confinement  for such a term is necessary in  order  to
protect the public from further criminal conduct by the
defendant.  (Quoted in footnote 3 of Neal, 628 P.2d  at
20.)
          (For  many years, this Court referred to  the
supreme  courts sentencing rule as the Mutschler  rule,
even  though  the supreme court expressly  declined  to
reach  this issue in Mutschler v. State, 560 P.2d  377,
381  (Alaska  1977), and did not adopt the  rule  until
Neal.   For  the  last several years,  this  Court  has
referred  to  the rule using the names of both  supreme
court decisions:  the Neal-Mutschler rule.)
          This  Court has repeatedly applied the  Neal-
Mutschler rule to both felony sentences and misdemeanor
sentences.4   However,  in the  years  since  the  Neal
decision,  both  the  Alaska  Supreme  Court  and   the
American   Bar  Association  have  reconsidered   their
approach  to the type of sentencing rule epitomized  by
Neal-Mutschler  that is, a rule that sets  an  absolute
limit on a sentencing judges discretion (in addition to
the   limits   already  contained  in   the   pertinent
sentencing  statutes) unless the  record  supports  one
specific finding:  that a greater sentence is necessary
to  protect the public from the continuing danger posed
by the defendant.

     (a)  The American Bar Associations changed  policy
  toward consecutive sentences

          The  American Bar Associations 1968 Standards
Relating to Sentencing Alternatives and Procedures have
been  superseded by the Standards for Criminal Justice:
          Sentencing.  The most recent version of the ABAs
Sentencing Standards is the third edition, approved  by
the  ABA  House  of  Delegates  in  February  1993  and
published in 1994.5
          This  current  edition of the ABA  Sentencing
Standards  contains no provision like  former  Standard
3.4(b)(iv)  which the supreme court relied on  in  Neal
that  is,  no  provision prohibiting sentencing  judges
from  imposing a composite sentence above  a  specified
level  of severity unless the judge affirmatively finds
that a more severe sentence is necessary to protect the
public.    This  is  no  accident:   the  current   ABA
Standards disavow this position and, instead,  the  ABA
now  advocates different policies to govern  situations
where a defendant is being sentenced for more than  one
offense.
          ABA  Sentencing Standard 18-3.7,  Convictions
of  multiple offenses, states that an offender  who  is
convicted   of  multiple  offenses  should  receive   a
composite   sentence  that  appropriately  takes   into
account all of the offenders current offenses.  See  18-
3.7(a).
          Under  Standard  18-3.7, when the  defendants
crimes  are  all  part  of a single  criminal  episode,
sentencing courts should not ... increase the  severity
of  [the  defendants composite sentence]  merely  as  a
result  of  the number of counts or charges  made  from
[that]  single  episode,  see  18-3.7(b)(ii),  and  the
defendants composite sentence should reflect [a]  level
of severity that take[s] into account the fact that the
separate  offenses  occurred  as  part  of  [a  single]
episode.  See  18-3.7(b)(iii).
          The  ABA continues to recommend that  when  a
defendant  is being sentenced for two or more  offenses
that are not all part of a single episode, the baseline
sentence should be derived by reference to the sentence
appropriate for the [defendants] most serious  offense.
18-3.7(d).  However, the ABA no longer endorses a  rule
forbidding a judge from exceeding the sentence for  the
defendants  most  serious  offense  except  in  special
situations.   Rather,  18-3.7(d) declares that  if  the
sentencing judge determines that a more severe sentence
is  appropriate, the enhancement should  ordinarily  be
determined  as  if  the  other  current  offenses  were
treated as part of the offenders criminal history or as
factors   aggravating  the  [defendants]  most  serious
offense.
          (See  also  Standard 18-6.5,  Sentencing  for
more   than   one   offense,  which  reiterates   these
guidelines.)
          In  the  History  of  Standard  section  that
accompanies   Sentencing  Standard  18-3.7,   the   ABA
explains its new position on this issue:
     
     [I]n  contrast to the second edition [of  the
     sentencing standards], the current  Standards
     do  not continue the policy of premising  the
     most  severe  sanctions on a finding  of  the
     offenders  future dangerousness.  See  former
     Standard 18-4.5(b)(iv) (consecutive sentences
     available  only when [the] court  finds  that
     confinement  for such a term is necessary  in
     order  to  protect  the public  from  further
     serious criminal conduct by the defendant).
     
ABA    Standards   for   Criminal    Justice,
Sentencing (3rd ed. 1994), p. 71.
          The  footnote that accompanies this
text  states  that  [t]his former  policy  is
rejected  consistently in the new  Standards,
and  the  footnote  directs  readers  to  the
Commentary   to  Standard  18-3.5   (Criminal
history;  recidivism) for an  explanation  of
the ABAs reasons for abandoning this policy.
          The    Commentary   to   Sentencing
Standard  18-3.5  explains  that  the  former
policy concerning consecutive sentencing  was
premised  on the idea that courts  would  use
lengthy terms of incarceration to selectively
incapacitate those offenders who  present[ed]
the  greatest  danger  to  the  public.   ABA
Sentencing Standards (3rd ed. 1994),  p.  61.
However,  the ABA was led to re-examine  this
premise  because of the disappointing results
of considerable research ... performed in the
1980s  to  test  the power of [a  defendants]
criminal  history,  and other  variables,  to
predict  future  dangerousness.   Ibid.   The
results  of  this research were disappointing
because, even though past offenders are, as a
group, more likely to re-offend, attempts  to
make     predictions    about    [particular]
individuals within the group [based on  these
criteria  were] more often wrong than  right.
Ibid.
          The    Commentary   to   Sentencing
Standard   18-3.5   concludes   with    these
observations:

     This  [third]  edition of the  Standards
rejects  prior ABA policy that the  operation
of  habitual  offender statutes  should  turn
upon  a  specific  finding of  a  substantial
possibility   of   future  serious   criminal
conduct   by  the  defendant.   As  discussed
above,   research  has  failed   to   develop
reliable  predictors of future  dangerousness
in  individual  cases.   ...   [W]e  have  no
empirical tool to make such judgments.

ABA Sentencing Standards, p. 64.
          Returning, then, to Standard 18-3.7
(the   standard   dealing  with   consecutive
sentencing), the Commentary to this  standard
declares  that the ABAs goal was to  steer  a
course  between  fully consecutive  sentences
for  multiple  crimes, which  can  result  in
sentences of extraordinary harshness, and the
former   policy  of  generally   limiting   a
defendants  composite sentence to the  amount
of  imprisonment  that  the  defendant  could
receive  for  their  most  serious  crime   a
policy  that [made] the remaining counts  ...
free   as   far  as  determination   of   the
[defendants]  sentence [was] concerned.   Id.
at   72.    Rather,   the  current   standard
advocates an approach to ... sentencings  for
multiple   convictions   that   is    neither
[presumptively]        consecutive        nor
[presumptively] concurrent.  Ibid.
          Under this revised policy, multiple
offenses  normally ought to be punished  more
harshly than single offenses, but not through
the  stacking  of  the individual  sentences.
Ibid.    Instead,   the  sentence   for   the
defendants most serious offense is used as  a
foundation, with principled enhancements  for
the  defendants other offenses, so  that,  in
the   words  of   18-3.7(a),  the  defendants
composite  sentence appropriately takes  into
account   all   of   the  offenders   current
offenses.
          (This  is similar to the rule  that
this   Court   employs   when   reviewing   a
defendants composite term of imprisonment for
two  or more criminal convictions:  we assess
whether  the  combined  sentence  is  clearly
mistaken,  given the whole of the  defendants
conduct  and criminal history.  See Brown  v.
State,  12 P.3d 201, 210 (Alaska App.  2000);
Comegys  v.  State,  747  P.2d  554,   558-59
(Alaska App. 1987).)

(b)   The  Alaska  Supreme  Courts  policy  toward
benchmark sentencing rules

          Although  we  believe it is significant  that
the  American  Bar Association no longer  endorses  its
former strict limitation on consecutive sentences,  the
new approach taken by the ABA in its current Sentencing
Standards  does  not  alter the fact  that  we  are  an
intermediate  appellate court,  and  that  we  have  no
authority  to  change a sentencing rule established  by
our supreme court, even though the supreme court relied
on  the ABA standards when it promulgated that rule and
even though the ABA now advocates a different approach.
The  ABAs  altered  approach to consecutive  sentencing
would  simply  be  an  interesting  footnote  to   this
discussion if we were not also convinced that,  in  the
years  since  the  Alaska  Supreme  Court  issued   its
decision  in  Neal, the supreme court has  changed  its
position on the issue of benchmark sentencing rules.
          In  the last twenty years, the supreme  court
has repeatedly declared that sentencing benchmarks must
not  be  applied  in  a manner that  places  inflexible
restrictions on a sentencing judges authority based  on
pre-established   criteria.    Rather,   even    though
sentencing benchmarks provide useful guidelines for the
exercise  of  sentencing discretion,  these  benchmarks
must allow for exceptions based on the particular facts
of  unusual cases.  The supreme courts altered approach
to  benchmark sentencing rules is reflected in a series
of  three  decisions:   State v. Wentz,  805  P.2d  962
(Alaska  1991), State v. Bumpus, 820 P.2d  298  (Alaska
1991),  and  State  v. Hodari, 996  P.2d  1230  (Alaska
2000).
          Wentz  involved a defendant who was sentenced
to  serve  12 years for a severe assault on his  wife.6
This  Court  reversed Wentzs sentence and directed  the
superior  court  to impose a sentence of  10  years  or
less.   In  reaching  this decision,  we  relied  on  a
sentencing  guideline that we and  the  Alaska  Supreme
Court had developed in several previous decisions.7
          This  10-year rule originated in  the  Alaska
Supreme  Courts decision in Donlun v. State,  527  P.2d
472  (Alaska  1974),  as modified six  years  later  in
Pascoe  v.  State,  628  P.2d 547  (Alaska  1980).   In
Donlun,  our  supreme court adopted the  ABAs  recommen
dation  that maximum terms of imprisonment  should  not
exceed  5 years except for cases involving particularly
serious  offenses, dangerous offenders, or professional
criminals.8   Later,  in  Pascoe,  the  supreme   court
endorsed   the   ABAs   modified  recommendation   that
sentences of imprisonment normally should not exceed  5
years,  and  that sentences of greater  than  10  years
should be reserved for unusual cases.9  And in Skrepich
v.  State, 740 P.2d 950 (Alaska App. 1987), this  Court
relied on the ABAs definition of habitual offender10 to
support our definition of which cases would qualify  as
unusual  under the Pascoe rule (i.e., situations  where
the  defendants  composite  sentence  might  exceed  10
years).   We held that, normally, a composite  sentence
exceeding  10  years  was  permissible  only  when  the
offender  ha[d] previously been convicted of [felonies]
for  which  a sentence [of] at least one full  year  of
incarceration was imposed.  Skrepich, 740 P.2d at 956.
          In  our decision in Wentz, we relied on  this
sentencing  rule  to reach the conclusion  that  Wentzs
sentence should not exceed 10 years imprisonment.  Even
though  Wentz had an extensive misdemeanor record,  and
          even though the sentencing judge found (based on prior
failed  attempts at rehabilitation) that  Wentz  was  a
dangerous offender who needed to be isolated to protect
the  public,  this Court held that the 10-year  ceiling
applied to Wentzs composite sentence because Wentz  had
no felony record.  777 P.2d at 216.
          When  Wentzs case went to the Alaska  Supreme
Court,  the  supreme  court  disapproved  this  10-year
sentencing ceiling  not just in Wentzs case, but  as  a
general  rule.   The  court gave two  reasons  for  its
decision:   first,  the  10-year ceiling  unjustifiedly
restricted  the  superior courts sentencing  discretion
within  the  statutory  framework  established  by  the
legislature;  and  second,  the  10-year  ceiling   was
contrary  to  [the supreme courts own] prior  decisions
concerning  the  proper  role of  appellate  courts  in
reviewing sentencing decisions.11
          With   regard   to  the  first  reason   (the
unjustified   restriction  on   the   superior   courts
statutory  sentencing  authority),  the  supreme  court
noted  that  the  10-year ceiling [had  the]  practical
effect  of  ... reduc[ing] by two-thirds the  range  of
acceptable  sentences  expressly  authorized   by   the
legislature [for Wentzs felonies].12
          The  supreme court then noted that the narrow
category  of  exceptions to the 10-year ceiling  (i.e.,
the exceptions for defendants who had previously served
substantial sentences for felony offenses, or who  were
guilty of premeditated attempts to kill or injure)  was
inconsistent  with the legislatures codification  of  a
broad range of aggravating factors in AS 12.55.155(c):
     
The  legislative  scheme allows  imprisonment
for  up to twenty years for class A felonies,
upon  proof  of  one  or more  of  twenty-six
enumerated    aggravating    factors.     See
AS 12.55.125; AS 12.55.155(c)(1)-(26).  Under
the  court  of appeals ruling, a trial  court
cannot  sentence an offender to  the  maximum
term,  regardless of the presence,  strength,
or  number of statutory aggravating  factors,
unless it can demonstrate that the case meets
one  of  the two exceptions to the  court  of
appeals ten-year rule.  We hold that  such  a
result   is  in  direct  conflict  with   the
language  of  the  statute and  is  therefore
impermissible.

Wentz,  805  P.2d  at 965  (emphasis  in  the
original).
          With  regard  to the second  reason
(the  departure from the proper  role  of  an
appellate   court  in  reviewing   sentencing
decisions), the supreme court declared:

     There  are drawbacks ... to relying  too
heavily  on  appellate review  to  articulate
sentencing   principles  and   to   fine-tune
sentences.   Appellate  review  by  its  very
nature is backward-looking.  It is the proper
role  of the appellate court to examine  what
has  occurred in a specific case, and to pass
on  the propriety of the result in that  case
only.   It  is  generally  accepted  that  an
appellate  court is effective  only  when  it
decides  cases  based on the  factual  record
before  it and only after the record in  that
case  has  been completely developed.   As  a
rule,  it  cannot and should  not  anticipate
what other factual situations might arise  in
the  future,  nor  should  it  fashion  rules
prospectively.

Wentz, 805 P.2d at 967, n. 6.13
          The  supreme  court cautioned  that
any  benchmark  sentencing  rule  had  to  be
sufficiently  flexible to allow a  sentencing
judge  to reach a fair sentence based on  the
particular  facts of an individual defendants
case,  even though the defendants case  might
not   fit  neatly  into  the  categories   of
aggravated cases that the appellate court had
foreseen when it established the benchmark:

     Whether   a   particular   offense    is
sufficiently serious to justify placing it in
the  upper  rather  than  lower  end  of  the
sentencing  range  ... cannot  be  determined
with  mathematical certainty.  Such questions
are  not easily resolved by resort to  bright
line  rules or pronouncements concerning  the
correct  sentence to be applied under varying
factual   circumstances.   For  example,   it
cannot  be stated categorically that a felony
assault committed by an offender with a  long
string  of  prior  misdemeanor  assaults   is
necessarily  less  serious  than   a   felony
assault  committed  by  an  offender  with  a
single   prior   felony   conviction.    Such
questions  must be answered by  reference  to
the  particular facts of the individual case,
and  are  therefore matters properly left  to
the sound discretion of the sentencing judge.

Wentz, 805 P.2d at 966.
          Because the supreme court concluded
that  the rigid approach embodied in the  10-
year sentencing ceiling was inconsistent with
the  principle  of individualized  sentencing
described  in  the preceding  quotation,  and
          because the court concluded that the 10-year
ceiling  artificially group[ed] substantially
different offenses and offenders together  in
the  lower  end of the authorized  sentencing
range,  the  court  disapproved  the  10-year
rule.  Ibid.
          The  supreme court then cited  this
Courts  Austin rule  the benchmark sentencing
rule  for  first felony offenders  that  this
Court  adopted in Austin v. State,  627  P.2d
657  (Alaska App. 1981)  as an example  of  a
proper benchmark rule which conformed to  the
principles the supreme court had endorsed:

     [W]e  do  not mean to suggest  that  the
court  of appeals may not adopt any standards
in  order  to guide the trial courts  in  the
exercise  of  their discretion in sentencing.
On  the contrary, in Karr v. State, 686  P.2d
1192, 1195 (Alaska 1984), we applied, without
disapproval,    the    court    of    appeals
longstanding Austin rule, which provides that
[n]ormally  a first [felony] offender  should
receive  a more favorable sentence  than  the
presumptive  sentence for a  second  [felony]
offender.   ...   As  the  court  of  appeals
observed in Austin, however, [this rule does]
not suggest that a first offender [may] never
receive   more   time  to  serve   than   the
presumptive  term for a second  offender;  it
merely  limit[s] application  of  the  higher
term  to the exceptional case.  [Austin,  627
P.2d] at 658.

     Properly applied[,] the exceptional case
standard  enunciated  in  Austin  allows  the
trial  court sufficient discretion to  exceed
the   presumptive  term  for  second   felony
offenders where a particularly compelling set
of  aggravating  factors  (AS  12.55.155)  or
[the] Chaney criteria (AS 12.55.005) militate
in favor of an increased sentence.

Wentz, 805 P.2d at 966-67.  (The emphasis  of
the  word  never  was added  by  the  supreme
court;  it  is not in the original  quotation
from Austin).
          Shortly  after  the  supreme  court
issued  its  decision in Wentz,  the  supreme
court  directed this Court to reconsider  our
sentencing decision in Williams v. State, 800
P.2d  955  (Alaska App. 1990),  in  light  of
Wentz.
          In our first Williams decision (the
one  cited in the preceding paragraph),  this
Court  established three benchmark sentencing
categories  for cases involving a  kidnapping
and  an  accompanying  sexual  assault.   The
first benchmark  sentences of no more than 20
years to serve  was for first offenders.  The
second benchmark  sentences of between 20 and
30  years   was for defendants with at  least
one  felony  conviction but with insufficient
criminal  history to be considered  dangerous
offenders  within  the definition  found  (at
that time) in the ABA Sentencing Standards.14
The  third benchmark  sentences exceeding  30
years    was   for   cases  [that]   involved
kidnappings   of   prolonged   duration    or
offenders   whose  prior  criminal  histories
established   them  as  persistent,   violent
criminals.  Williams, 800 P.2d at 958-960.
          After the supreme court directed us
to   reconsider  these  benchmark  sentencing
categories,   we  issued  our   decision   in
Williams  II   i.e., Williams v.  State,  809
P.2d  931 (Alaska App. 1991).  In that second
Williams  decision, depending on the  readers
viewpoint, we either clarified or backed away
from the benchmark sentencing rules announced
in the first Williams decision.  Here is what
we said about benchmarks:

     [I]n  Williams[,] we did not purport  to
formulate   or  apply  any  hard   and   fast
sentencing  rule restricting the  appropriate
sentence  for  a  broad  class  of  disparate
offenders or limiting the factors that  could
properly  be  taken into account in  deciding
the  relative  seriousness  of  a  particular
case.     Instead,   [we]   collected    past
sentencing   decisions  involving   offenders
convicted  of  crimes  generally  similar  to
Williamss    and   organized   [those    past
decisions]  into benchmark sentencing  ranges
...  [to] provide assistance and guidance  to
sentencing   courts  faced   with   difficult
sentencing decisions in comparable cases.

     Our  benchmarks  in Williams  and  other
cases are not intended to be inflexible rules
confining the permissible range of a sentence
in  a  given case; rather, they are meant  to
act as historically-based starting points for
individualized analysis in each case[.]   []A
basic precept of sentencing [continues to  be
that]  the defendants sentence must be  based
upon  an individualized consideration of  the
offender  and  the offense.[]   McPherson  v.
State,  800 P.2d 928, 933 (Alaska App.  1990)
     (Bryner, C.J., concurring and dissenting).

Williams II, 809 P.2d at 933.
          We  then  summed  up  our  view  of
sentencing  benchmarks.   We  declared   that
benchmark sentencing rules are meant only  to
provide  a  framework for  an  individualized
analysis of the facts of a defendants case in
light  of  the applicable sentencing criteria
originally specified in State v. Chaney,  477
P.2d  441,  443-44  (Alaska  1970),  and  now
codified  in  AS  12.55.005.  We  immediately
added:

If  the  language of our original opinion  in
this   case,  or  any  of  our  other  cases,
suggests that sentencing benchmarks establish
hard  and  fast  limits, we  disapprove  that
language.    We   similarly  disapprove   any
language  in  this or prior cases  suggesting
that  the  benchmarks we have  described  can
only  be deviated from when certain specific,
limited   exceptions  are  established.    We
stress that any sound reason may be relied on
to  differentiate one case from another.  The
legitimate  role of benchmarks is to  promote
careful   consideration  of  whether   actual
differences  exist between a given  case  and
prior,   generally  similar  cases,  and   to
encourage courts to make clear their reliance
on those differences when they do exist.

Williams II, 809 P.2d at 933-34.
          Shortly after this Court issued our
clarification of the principles governing the
use   of   benchmark  sentencing  ranges   in
Williams  II, the supreme court had  occasion
to   again  disapprove  this  Courts  use  of
sentencing benchmarks.  The case was State v.
Bumpus, 820 P.2d 298 (Alaska 1991).
          Bumpus  involved  a  defendant  who
committed a series of burglaries and  thefts,
and  who received a composite sentence of  23
years                         imprisonment.15
    This   Court  found  that  the   superior
court  had  failed to justify a  sentence  of
this severity for a non-violent offender, and
we  directed  the  superior court  to  reduce
Bumpuss sentence to no more than 15 years  to
serve  (more  specifically, 20 years  with  5
years suspended).16
          The  supreme court agreed with this
Court  that the superior court had failed  to
adequately analyze Bumpuss sentence, but  the
supreme court also concluded that this Courts
          15-year sentencing ceiling was unjustified.17
In  particular, the supreme court disapproved
of  this  Courts prior decisions in which  we
held   that,   among  the  sentencing   goals
codified in AS 12.55.005, only the sentencing
goal of protecting the public  as opposed  to
the other sentencing goals of rehabilitation,
deterrence  (both  of the  defendant  and  of
others),  and the reaffirmation  of  societal
norms   could  normally  justify  a  sentence
exceeding 10 years to serve.
          Here is what the supreme court said
on this issue:

     The  court  of appeals noted  that  [the
sentencing  judge] placed great  reliance  on
the sentencing goals of deterrence, community
condemnation,   and   isolation.    [However,
citing]  its own [prior] decisions  and  this
courts  decision in Pears v. State, 698  P.2d
1198 (Alaska 1985), the court of appeals  ...
concluded  that  [the sentencing]  goals  [of
deterrence and community condemnation]  could
never    support    imposition    of    [the]
twenty-three-year    aggregate    term    [of
imprisonment imposed in Bumpuss case].

     The [court of appeals] conclusion is  no
longer  valid  in  the wake  of  this  courts
decision  in  State v. Wentz,  805  P.2d  962
(Alaska 1991), where we stated that dicta  in
Pears  purporting to limit the  circumstances
under  which sentences may exceed  ten  years
could  not  be applied beyond the  particular
facts of that case.  [Wentz, 805 P.2d] at 966
n. 5.

     Wentz  established that it is no  longer
appropriate for courts to rigidly define  the
length  of sentence that can be justified  by
any  particular criterion, provided that  the
sentence  is  ultimately  within  the   range
allowed by the legislature.

Bumpus, 820 P.2d at 302 (footnote omitted).
          See  also Griffin v. State, 9  P.3d
301, 308 (Alaska App. 2000), where this Court
expressly   acknowledged  that  the   supreme
courts  decision  in  Bumpus  abrogated   the
earlier 10-year sentencing guideline based on
the ABA sentencing standard.
          Thus,  Bumpus reiterated the  Wentz
decisions criticism of sentencing rules  that
rigidly  define the length of  sentence  that
can be justified by any particular criterion.
          But, perhaps more important to our decision
of Phelpss case, the Bumpus decision contains
a   footnote  in  which  the  supreme   court
questioned the continued vitality of the Neal-
Mutschler  rule (although the court  did  not
refer to the rule by this name):

     The  public  defender,  [appearing]   as
amicus curiae, also [relies on] the [Court of
Appealss]  requirement that  sentences  which
exceed  the maximum term for the [defendants]
most  serious offense  here, ten years   must
be based on the need to isolate the defendant
for the entire sentence.  Contreras v. State,
767  P.2d 1169, 1174 (Alaska App. 1989).  The
vitality  of  this  rule  is  also  open   to
question after Wentz ...  .

Bumpus, 820 P.2d at 302 n. 5.
          As  can  be seen from the  text  of
this  footnote, the supreme court erroneously
attributed the Neal-Mutschler sentencing rule
to this Court, rather than acknowledging that
the rule is derived from its own decision  in
Neal.  However, this does not alter the  fact
that the supreme court apparently viewed  its
decisions in Wentz and Bumpus as inconsistent
with Neal.
          Eight  and  a half years after  its
decision in Bumpus, the Alaska Supreme  Court
revisited  the issue of sentencing benchmarks
in  State  v.  Hodari, 996 P.2d 1230  (Alaska
2000).  Hodari involved a defendant who broke
into  a  house  and then robbed,  raped,  and
brutalized   a   mother  and   her   pregnant
daughter,  while  forcing the  mothers  other
child  (a  fourteen-year-old boy) to watch.18
The  superior  court sentenced  Hodari  to  a
composite  sentence of 55 years imprisonment,
but  this Court reversed Hodaris sentence and
directed the superior court to impose no more
than   40  years.19   We  acknowledged   that
Hodaris  crimes were aggravated and deserving
of  a  ... severe sentence, but we held  that
Hodaris  composite sentence could not  exceed
40  years  to serve because we have  approved
composite  terms of forty years or more  only
for  violent  crimes committed  by  offenders
with   backgrounds  that  included   habitual
criminality  or  repeated  acts  of  criminal
violence   criteria that were not present  in
Hodaris background.20
          The  supreme  court  reversed  this
Courts  decision, characterizing this  Courts
analysis  of  Hodaris case  as  the  kind  of
          formulaic benchmark sentencing that the
supreme court rejected in Wentz, and that  we
ourselves  disavowed in Williams  II.21   The
supreme court approvingly quoted this  Courts
own   post-Wentz  discussion   of   benchmark
sentencing rules in Ross v. State,  877  P.2d
777 (Alaska App. 1994):

[Benchmark sentencing rules are] a  mechanism
to protect against the disparate treatment of
similarly   situated  offenders  when   sound
reason for disparity cannot be found.  At the
same time, however, ... sentencing benchmarks
[are,]  at most[,] ... an imprecise  starting
point  for  determining appropriate sentences
in  individual cases.  Sentencing  benchmarks
place  no hard and fast restrictions  on  the
scope  of the sentencing courts authority  in
any given case.

Hodari,  996 P.2d at 1237 (quoting Ross,  877
P.2d at 780) (emphasis omitted).
          In   Hodari,   the  supreme   court
reiterated what it said in Wentz:   that  the
question of [w]hether a particular offense is
sufficiently serious to justify placing it in
the  upper rather than [the] lower end of the
sentencing  range  ... cannot  be  determined
with mathematical certainty[, or answered] by
resort to bright line rules or pronouncements
concerning the correct sentence to be applied
under varying factual circumstances.  Id.  at
1235.22

(c)   Our   assessment  of  the  district   courts
sentencing decision in Phelpss case, and  our  re-
assessment of the Neal rule, based on the  supreme
courts post-Neal decisions

     Now  that we have examined the Alaska Supreme
Courts  jurisprudence on the  issue  of  benchmark
sentencing rules, we turn to what is seemingly the
last  bright-line sentencing rule remaining  under
Alaska  law:   the supreme courts  own  sentencing
rule in Neal.
     As  we  have explained, Neal declares that  a
defendants  composite sentence  for  two  or  more
crimes   can  not  exceed  the  maximum  term   of
imprisonment  for  the  defendants   single   most
serious offense unless the more severe sentence is
justified by one particular sentencing goal:   the
need  to  protect the public from  the  defendants
continued  criminal  acts  or,  as  this  goal  is
phrased  in  AS 12.55.005(3), the need to  confine
the  defendant  to  prevent further  harm  to  the
     public.
          In  the  past, this Court has indicated  that
Neal  must  be applied to the letter  that  a  sentence
above  the  Neal ceiling can be justified only  by  the
need  to  protect  the public, and  not  by  any  other
sentencing goal such as community condemnation  of  the
defendants conduct or reaffirmation of societal values.
See,  e.g., Peruski v. State, 711 P.2d 573, 575 (Alaska
App. 1985) (Singleton, J., concurring), Brown v. State,
693 P.2d 324, 331 (Singleton, J., concurring).
          But  the  goal of protecting the public  from
the  defendants further crimes is but one of the  seven
sentencing  goals  listed in AS  12.55.005.23   As  the
supreme court has repeatedly stated in its decisions on
the  issue of benchmarks, sentencing benchmarks are not
to  be  interpreted or applied in a manner that  places
hard  and  fast  restrictions  on  the  scope  of   the
sentencing courts authority in any given case.  Because
the  proper  sentence  in any given  case  can  not  be
determined   with  mathematical  certainty,   appellate
courts  should not impose bright-line rules that  allow
no  exceptions for unusual cases, nor should  appellate
courts  make before-the-fact pronouncements  concerning
the correct sentence that must invariably be imposed on
particular  categories  of  offenders,  or  that   must
invariably  be  imposed  for particular  categories  of
offenses.
          In  other  words,  even though  the  goal  of
protecting  the  public is important, there  are  times
when  it is simply improper for a court to ignore other
sentencing  goals, and other facets of the  case,  when
sentencing a defendant for multiple crimes.
          As this Court acknowledged in our post-Hodari
decision,  Brown  v.  State, 4 P.3d  961  (Alaska  App.
2000):
     
          In  Hodari  and ... Wentz,  the  supreme
     court  admonished this court not to interpret
     or  apply  benchmark ranges inflexibly.   The
     [supreme]  court stressed that any sentencing
     decision ultimately must be justified on  the
     particular facts of a defendants 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.
     
          In  Williams ... , this court  responded
     to the supreme courts concerns.  We clarified
     that  benchmark ranges were intended to serve
          only  as  starting points for sentencing
     analysis,  not  hard and  fast  limits  on  a
     judges  sentencing discretion.  We explicitly
     rejected  the  notion that sentencing  judges
     could  deviate  from a benchmark  range  only
     when certain specific, limited exceptions are
     established.   Rather,  we  stressed  that  a
     sentencing judge could properly rely  on  any
     sound  reason to deviate up or down from  the
     benchmark.
     
     Brown, 4 P.3d at 963 (footnotes omitted).
          As   we  noted  earlier,  we   have
repeatedly interpreted and applied the  Neal-
Mutschler  rule  as a bright-line  sentencing
rule  that  imposes  a strict  and  unvarying
boundary  on  a sentencing judges discretion.
But this view of the Neal-Mutstchler rule  is
fundamentally    inconsistent    with     the
principles enunciated by the supreme court in
Wentz, Bumpus, and Hodari.  We now hold  that
the   Neal-Mutschler  ceiling  is  simply   a
starting  point  or guide for  analyzing  the
proper  severity  of  a defendants  composite
sentence    and  that  a  composite  sentence
greater  than the Neal ceiling can  sometimes
be  justified by sentencing goals other  than
the particular goal of protecting the public.
          Our  remaining task is to  evaluate
Judge  Hanleys sentencing decision in Phelpss
case in light of our holding.
          As  we  explained  in  the  earlier
portion  of  this opinion where  we  detailed
Judge  Hanleys  findings  at  the  sentencing
hearing,  Judge  Hanley  found  that  Phelpss
indecent  exposure offenses  were  among  the
most serious, and that a maximum sentence was
appropriate for these offenses  i.e., 1 years
imprisonment.  Phelps does not  dispute  this
conclusion.   Thus, the only remaining  issue
is whether there was sufficient justification
for  Judge  Hanleys  decision  to  impose   a
consecutive  180  days  to  serve  (i.e.,  an
additional  6  months) for  Phelpss  separate
offense of failure to appear.
          Obviously,   Phelpss  decision   to
abscond  in  the middle of his  trial  was  a
completely separate criminal episode from the
acts of indecent exposure that he was charged
with.   And,  as  we noted  earlier  in  this
opinion, Alaska courts have recognized that a
defendant should normally receive consecutive
jail time for the crimes of escape or failure
to  appear.   See Walton v. State,  568  P.2d
981,  986 (Alaska 1977); Hayes v. State,  790
P.2d 713, 717 (Alaska App. 1990).
          In   Walton,   our  supreme   court
observed  that  the goals of  sentencing  ...
would  be  largely frustrated if no  real  or
effective  additional sanction  or  detriment
flowed  from [a defendants] conviction  [for]
escape   [while  incarcerated   for   another
crime].  568 P.2d at 986.  And in Hayes, this
Court  stated  that, [i]n  general,  where  a
defendant  commits  the crime  of  escape  or
failure to appear, there is a strong argument
for the imposition of a consecutive sentence.
790 P.2d at 717.
          In  Phelpss  case, as Judge  Hanley
indicated in his sentencing remarks,  Phelpss
act  of  failing to appear was not a  garden-
variety  example of this crime  for instance,
a failure to appear at a pre-trial conference
or  calendar  call  that was  soon  remedied.
Instead,   Phelpss  failure  to  appear   was
significantly  more  serious:   he  absconded
during  his  trial (after he  was  confronted
with  strong  evidence against him),  and  he
remained a fugitive for more than 15 years.
          Judge Hanley concluded that Phelpss
failure  to appear was serious for a separate
reason:  the effect that it had on the victim
of  his underlying offenses and on her  older
sister, who testified that Phelps also abused
her.   Judge  Hanley found that, because  the
criminal  prosecution against Phelps remained
unfinished  for fifteen years, the  emotional
problems  that  the  victim  and  her  sister
experienced as a result of Phelpss underlying
acts  of  indecent exposure were  exacerbated
and prolonged.
          Judge   Hanley  then  noted   that,
unless  he imposed some additional jail  time
for  Phelpss crime of failure to  appear,  it
[would]  be  as if nothing ever happened  [to
Phelps]  because  of it.  Accordingly,  Judge
Hanley  concluded  that the sentencing  goals
codified  in AS 12.55.005 would affirmatively
be  frustrated  unless Phelps  received  some
amount  of consecutive imprisonment  for  the
crime of failure to appear.
          AS  12.55.005 declares that the two
paramount purposes of sentencing law are  the
elimination   of  unjustified  disparity   in
sentences  and  the attainment of  reasonable
uniformity  in sentences, as evaluated  under
the  seven  sentencing goals  listed  in  the
statute.  Given the facts of Phelpss  failure
to    appear,   and   given   Judge   Hanleys
unchallenged conclusion that Phelpss acts  of
indecent  exposure (considered by themselves)
merited  a  1-year  term of imprisonment,  we
agree  with Judge Hanley that, unless  Phelps
received  an  additional term of imprisonment
for  his failure to appear, this would create
an unjustified sentencing disparity and would
frustrate  the goal of reasonable  uniformity
in sentencing.
          Given the facts of this case, Judge
Hanley  could reasonably conclude that,  even
though the sentencing goal of protecting  the
public  might  have  been  satisfied   by   a
sentence  of  only  1 year, other  sentencing
goals  codified in AS 12.55.005 would  remain
unsatisfied: the reasonable assessment of the
seriousness  of Phelpss offenses in  relation
to   other  offenses;  the  extent  to  which
Phelpss conduct harmed the victim; the effect
of the sentence in deterring other members of
society  from  similar criminal conduct;  and
the effect of the sentence as a reflection of
the  communitys condemnation of the  criminal
act and as a reaffirmation of societal norms.
          For these reasons, Judge Hanley had
sufficient reasons to impose a sentence  that
exceeded  the Neal ceiling.  And,  given  the
totality of Phelpss conduct, we conclude that
Phelpss  composite sentence of  545  days  to
serve is not clearly mistaken.24

Conclusion

     The sentencing decision of the district court
is AFFIRMED.

_______________________________
  1  At the time of Phelpss offenses, there was a single crime of
indecent   exposure.   Effective  June  11,  1998,   the   Alaska
Legislature split the offense into two degrees, one a felony  and
the  other  a  misdemeanor.  See SLA 1998, ch.  81,   3-4,  which
enacted AS 11.41.458 and amended AS 11.41.460.

l ska 1970). 5.135(a) (setting the maximum penalty for class A
misdemeanors)  and  AS  12.30.060(2)  (setting  the  maximum
penalty  for  failure  to  appear  in  connection   with   a
misdemeanor).

3 See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).

4 See, e.g., Tice v. State, 199 P.3d 1175, 1178 (Alaska App.
2008);  Vandergriff v. State, 125 P.3d 360,  363-64  (Alaska
App.  2005);  Powell v. State, 88 P.3d 532,  537-38  (Alaska
App.  2004) (felony cases); Peruski v. State, 711 P.2d  573,
574  (Alaska App. 1985); Brown v. State, 693 P.2d  324,  331
(Alaska App. 1984) (misdemeanor cases).

5  The  text  of  these Standards (without the  accompanying
commentary)  is  available at the American Bar  Associations
web site:
http://new.abanet.org/sections/criminaljustice/Pages/Standards
.aspx

6 Wentz, 805 P.2d at 962-63.

7 See Wentz v. State, 777 P.2d 213, 215-16 (Alaska App. 1989).

8  Donlun,  527  P.2d  at  475.  See former  ABA  Sentencing
Alternatives  and Procedures Standard 2.1 (1968),  cited  in
footnote 9 of Donlun, 527 P.2d at 475.

9  Pascoe, 628 P.2d at 550, citing the 1971 version  of  ABA
Sentencing Standard 2.1.

10Under  former ABA Sentencing Standard 18-4.4(c) (1982),  a
habitual offender was one who had been convicted of at least
two prior felonies (committed on different occasions) within
five  years  of the current offense, and who had  previously
served  a  sentence  of greater than 1  years  imprisonment.
(Cited in Skrepich, 740 P.2d at 956.)

11Wentz, 805 P.2d at 965.

12Ibid.

13  Quoting Susanne DiPietro, The Development of Appellate
Sentencing  Law in Alaska, 7 Alaska L.  Rev.  265,  296
(1990).
14  See footnote 5 of the Williams opinion, 800 P.2d at 959.

15  Bumpus, 820 P.2d at 299-300.

16  Id. at 300-01, 305.

17  Id. at 305.

18  Hodari, 996 P.2d at 1231.

19  Hodari v. State, 954 P.2d 1048, 1052 (Alaska App. 1998).

20  Id. at 1051-52.

21  Hodari II, 996 P.2d at 1236.

22  Quoting Wentz, 805 P.2d at 966.

23AS 12.55.005 declares that the goals of sentencing are:

(1)  the  seriousness of the defendants present  offense  in
relation to other offenses;
(2)  the  prior  criminal history of the defendant  and  the
likelihood of rehabilitation;
(3)  the  need  to confine the defendant to prevent  further
harm to the public;
(4) the circumstances of the offense and the extent to which
the  offense  harmed  the victim or  endangered  the  public
safety or order;
(5)  the  effect of the sentence to be imposed in  deterring
the  defendant  or  other  members of  society  from  future
criminal conduct;
(6)  the effect of the sentence to be imposed as a community
condemnation  of the criminal act and as a reaffirmation  of
societal norms; and
(7) the restoration of the victim and the community.
24  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).

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