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State v. Bumpus (11/8/91), 820 P 2d 298
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
)
)
Petitioner, ) File No. S-3463
)
v. ) 3PA 87 1736 CR.
)
DONALD L. BUMPUS, ) O P I N I O N
)
Respondent. ) [No. 3769 - November 8, 1991]
________________________________)
Petition for Hearing from the Court of Ap
peals, State of Alaska, on Appeal from the
Superior Court, Third Judicial District,
Palmer, J. Justin Ripley, Judge.
Appearances: Cynthia M. Hora, Assistant
Attorney General, Anchorage, Douglas B.
Baily, Attorney General, Juneau, for
Petitioner. Glen Mark and Teri L. Powers, Law
Offices of Glen Mark, Anchorage, for
Respondent. Suzanne Weller, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Amicus Curiae,
Public Defender Agency.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
BURKE, Justice.
MATTHEWS, Justice, with whom RABINOWITZ,
Chief Justice, joins, dissenting.
After pleading no contest, Donald L. Bumpus was convicted of
two counts of first degree burglary, a class B felony. A
divided court of appeals concluded that Bumpus' resulting
sentence was excessive and his case was remanded with
instructions setting an upper limit for any new sentence.
Bumpus v. State, 776 P.2d 329 (Alaska App. 1989). The state
petitioned for hearing from the decision of the court of
appeals, and the petition was granted. Having now examined
the case on its merits, we affirm in part and reverse in part.
I
A
Bumpus' convictions1 arose from his participation in a
burglary ring, which was responsible for about fifty
burglaries in the Matanuska/Susitna (Mat/Su) Valley and
Fairbanks areas between May and September of 1987. Bumpus
apparently joined the group in July 1987, shortly after his
release from prison.
Bumpus was arrested in Anchorage on October 8, 1987. He
eventually acknowledged his participation in the burglary ring
and indicated that he used his share of the proceeds to pay
living expenses and support his drug habit, which consisted of
daily injections of either cocaine or heroin. The record also
indicates that Bumpus provided some assistance to authorities
in recovering some of the stolen property.
At the time of the offenses, Bumpus was twenty-nine years
old. He first came to Alaska as a member of the United States
Army. During his eighteen months in the military, Bumpus was
disciplined twice for possession of marijuana, resulting in a
reduction in rank, forfeiture of pay, and ineligibility to
reenlist. He also served four days in jail for shoplifting.
Since his August 1977 discharge from the Army, Bumpus has
amassed an extensive criminal record. Five days after his
discharge, he was arrested and subsequently convicted of
burglary not in a dwelling, for which he served 180 days and
received three years probation. Shortly after his release in
early 1978, Bumpus was charged with two counts of receiving
and concealing stolen property. His conviction on these
charges resulted in revocation of his probation for the
earlier burglary; he was consequently imprisoned until 1981.
From his release in 1981 through mid-1984, Bumpus avoided
further arrest, although he has admitted that during that
period he supported his cocaine habit by dealing marijuana.
In April 1984, Bumpus was arrested and convicted of
shoplifting, for which he received a suspended sentence. On
August 29, 1984, he was arrested along with another man in the
act of burglarizing a gas station. Upon conviction for
burglary in the second degree, Bumpus was sentenced to the
presumptive term of three years. This prison term ended in
July 1987, shortly before he joined the burglary ring involved
in the crimes leading to the present sentence appeal.
B
For the Mat/Su Valley crimes, Bumpus separately pled no
contest in Palmer to two counts of burglary in the first
degree. He appeared for sentencing on these charges before
Superior Court Judge J. Justin Ripley, after he had been
sentenced in Fairbanks. Before Judge Ripley, Bumpus'
prior felony convictions made him subject to presumptive terms
of six years for each count. At the sentencing hearing, the
prosecutor asked Judge Ripley to impose a sentence which, when
aggregated with the Fairbanks sentence, would result in a
sentence of fifteen to twenty years.
Judge Ripley found three aggravating factors.2 He also
found Bumpus to be a worst class offender and, by virtue of
his long history of recidivism, a dangerous offender. After
consideration of the sentencing factors approved by this
court,3 Judge Ripley concluded that Bumpus deserved "a massive
ly long sentence." Thus, he enhanced the presumptive
sentences on both counts to seven years, and ordered that the
terms be served consecutive to one another, and consecutive to
the Fairbanks term. The composite term resulting from Bumpus'
involvement in the burglary ring was, therefore, twenty-three
years. Judge Ripley also specified that Bumpus would not be
eligible for parole.
C
The court of appeals held that Judge Ripley correctly
characterized Bumpus as both a worst offender and a dangerous
offender, and agreed with Judge Ripley's conclusion that a
"massively long sentence"was appropriate. Bumpus v. State,
776 P.2d at 333. It further held that Judge Ripley's
enhancement of the presumptive terms to seven years for each
count was warranted by the circumstances. Id. With Judge
Singleton dissenting, however, the majority concluded that
Judge Ripley was clearly mistaken in assessing a composite
term of twenty-three years. Id. at 338.
As discussed more fully below, the appellate court expressed
concern that the resulting sentence was merely "the somewhat
fortuitous result of adding together the terms that the
superior court deemed to be individually appropriate for
Bumpus' separate crimes." Id. at 334. The court noted that
Judge Ripley made no express finding that twenty-three years
was necessary to protect the public from Bumpus, and stated
that the record did not "plainly establish"such a necessity.
Id. at 335. The court further determined that Judge Ripley
placed undue emphasis on deterrence and community
condemnation, sentencing goals that, in the court's opinion,
did not justify such a harsh sentence. Id. Finally, the
court concluded that the sentence was excessive when compared
to those reported for other criminals under relatively similar
circumstances, and when compared to the sentence received by
one of Bumpus's co-conspirators. Id. at 336-38.
II
This case, which involves a serious recidivist convicted of
multiple offenses with several aggravating factors, presents a
situation where the legislative preference for consecutive
sentences collides with the goal of sentence uniformity.
Bumpus' twenty-three year sentence is well within the letter
of the law,4 yet apparently unprecedented for a burglar in
this state. The court of appeals found numerous shortcomings
in the trial court's sentence and concluded that it was
"clearly mistaken." See McClain v. State, 519 P.2d 811, 813
(Alaska 1974) (standard of review in sentence appeals
determined to be whether trial court "clearly mistaken").
A
In its opinion, the court of appeals stated:
[T]he [superior] court did not even
refer to the aggregate length of the
sentences it imposed. From the record, it
would appear that the court had no specific
reason to select a term totaling twenty-three
years. The composite term seems instead to
reflect the somewhat fortuitous result of
adding together the terms that the superior
court deemed to be individually appropriate
for Bumpus' separate crimes.
Bumpus, 776 P.2d at 334. Although consecutive sentences are
authorized by statute, the court continued, it is improper to
mechanically string together individual sentences. 776 P.2d
at 334 (citing State v. Andrews, 707 P.2d 900, 909-10 (Alaska
App. 1985), aff'd on other grounds, 723 P.2d 85 (Alaska
1986)). A proper sentence, the court concluded, must take
into account the aggregate sentence imposed and consider its
appropriateness in light of the circumstances. Id.
The appellate court's characterization of Judge Ripley's
sentencing is rather unfair. Although he never verbalized the
sum total of the sentence, the sentencing transcript makes it
abundantly clear that he had it in mind throughout. Before
the sentence was imposed, there was a protracted discussion of
the options available, including consecutive sentencing,
concurrent sentencing, and suspended sentencing. The
discussion included explicit references to the Fairbanks
sentence already imposed, and the aggregate effect of any
action Judge Ripley might choose to take. Thus, the record
does not seem to support the view that twenty-three years was
merely a fortuitous result, unappreciated by the sentencing
judge.
B
The court of appeals noted that Judge Ripley "placed great
reliance on the sentencing goals of deterrence, community
condemnation, and isolation." Id. at 335. Citing its own
decisions and this court's decision in Pears v. State, 698
P.2d 1198 (Alaska 1985), the court of appeals asserted that
"the sentencing goals of rehabilitation, deterrence, and
reaffirmation of societal norms will almost invariably be
satisfied by imposition of a sentence of ten years or less."
Id. Concerning deterrence and community condemnation, the
court concluded that those goals could never support
imposition of a twenty-three year aggregate term. Id.
The appellate court's substantive conclusion is no longer
valid in the wake of this court's 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. Id. at 966 n.5.5
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.
C
The court of appeals next faults Judge Ripley for not
expressly finding that isolation of Bumpus for twenty-three
years is necessary to protect the public -- that is, that a
lesser sentence would not serve to deter or rehabilitate him.
Bumpus, 776 P.2d at 335. Citing our opinion in Neal v. State,
628 P.2d 19, 21 (Alaska 1981), the court notes that failure to
make an express finding is excusable if the record
"unequivocally establishes"the need for isolation. 776 P.2d
at 335. The court concludes that in Bumpus' case the record
does not support the inference that twenty-three years of
isolation is necessary. Id. at 336.
In support of its own reading of the record, the court of
appeals emphasized a number of factors. First, the court
noted that the sentencing reports contained little information
about past efforts to deal with Bumpus' drug problems, despite
the fact that his criminal behavior was linked to his
longstanding problem with drug abuse. Id. The court also
pointed out the absence of any psychiatric evaluation or
testing. Id. (citing DeGross v. State, 768 P.2d 134, 141
(Alaska App. 1989) (citing cases expressing the desirability
of obtaining a psychiatric evaluation before imposing an
unusually lengthy term of incarceration)).
Turning to Bumpus' criminal history, the court of appeals
concluded that "the record strongly suggests that Bumpus may
be amenable to rehabilitation." 776 P.2d at 336. To support
this conclusion, the court asserted that Bumpus avoided
entanglement with the authorities for the six years between a
1978 conviction for concealing stolen property and a 1984
conviction for burglary.6 The court also asserted that Bumpus
has been subjected to only one significant term of
imprisonment, the three years from 1984 to 1987.7 Finally,
the court stressed that his previous convictions were only for
class C felonies and, although his current convictions are
more serious, that he was only a follower in the burglary ring
and not involved in all of its activities even after he
joined. Id.
On appeal, the state argues as an initial matter that Judge
Ripley did find that Bumpus needed to be isolated for the
entire twenty-three years. Specifically, the state points to
the judge's statement to Bumpus that the sentence he was about
to impose was necessary because of "the need to isolate you
until you get yourself better." The state's contention is
that this statement, especially considered in the context all
of Judge Ripley's remarks, indicates that the judge took into
account the need for isolation as well as the prospects for
rehabilitation.
The state then recites the details of Bumpus' criminal
history, emphasizing the generally brief period between
punishment for one offense and commission of another. Other
than the three year period from 1981 to 1984, the length of
time between Bumpus' release from prior incarceration and in
volvement in subsequent criminal activity was often measured
in terms of days and weeks. This pattern extends back through
1977, when Bumpus, then nineteen, was arrested for
shoplifting. Bumpus' participation in the burglary ring began
within days of his release from three years in prison for
burglary.
The state also argues that the record clearly demonstrates
that Bumpus is not motivated to deal with his substance abuse
problem. It stresses that although his drug habits have cost
him military rank, money and his liberty, Bumpus has only been
drug-free for a brief period following his release from prison
in 1981. In addition to resuming drug use after that period,
the state notes that Bumpus intensified his dependency by
moving from marijuana to daily injections of heroin and
cocaine. Finally, the state argues that if the court of
appeals considered the twenty-three year sentence excessive,
it should have remanded the case to Judge Ripley for further
consideration.
While we agree with the appellate court's determination that
Judge Ripley's remarks fall short of an explicit finding that
isolation is necessary for twenty-three years, we find it
difficult to reconcile the appellate court's analysis with its
ultimate disposition of the case. After making its
comparisons, the court concludes that twenty-three years is
clearly mistaken. Bumpus, 776 P.2d at 338. Then, without
further explanation, the court directs the trial judge to
impose a new sentence that results in an aggregate not
exceeding twenty years with five years suspended. Id.
The court's abrupt choice of a fifteen year term is, on its
face, not moored to any principle. One implication might be
that fifteen years is the most any burglar not convicted of
other crimes should receive in this state, but nothing in the
applicable statutes, the prior case law, or the appellate
court's reasoning explains why fifteen years should be the
upper limit.
In Shagloak v. State, 582 P.2d 1034, 1039-40 (Alaska 1978),
a case involving an offender arguably less worthy of
condemnation than Bumpus, we held that a fifteen year sentence
for a single burglary was not excessive.8 This certainly
suggests that, for purposes of appellate review, the "range of
reasonable-ness"in Bumpus' case extends past the fifteen year
mark. See McClain, 519 P.2d at 813 ("clearly mistaken test
implies a permissible range of reasonable sentences").
The fifteen year sentence is similarly at odds with the
appellate court's comparison of Bumpus' sentence to that of
David Heacock, the leader of the burglary ring. Heacock was
sentenced to a total term of twenty years, with ten years
suspended.9 Heacock v. State, 762 P.2d 503 (Alaska App.
1988). The appellate court concluded that Bumpus did not
deserve "a sentence involving significantly more than twice
the unsuspended incarceration that Heacock received,"but then
authorized the superior court, on remand, to impose a sentence
fifty percent longer than the unsuspended portion of the
sentence given Heacock. Bumpus, 776 P.2d at 337.
We also note that Bumpus helped the police apprehend his co-
conspirators. This mitigating factor is important, because
the practice of rewarding criminals who betray their
confederates undermines the the existence of all criminal
conspiracies. Yet, the presence of this factor had no
apparent effect on the appellate court's reasoning; at least,
it is not mentioned in the court's opinion. Therefore, we
conclude that the court of appeals' order mandating a sentence
no longer than fifteen years fails to properly encompass the
permissible range of reasonable sentences.
III
The court of appeals correctly identified several short-
comings in Judge Ripley's assessment of a twenty-three year
sentence: Judge Ripley did not address the significance
attached to the aggravating factors that he found; he did not
make an explicit finding that the twenty-three year sentence
was necessary to protect the public; he sentenced Bumpus to an
unusually lengthy sentence without any psychiatric testing or
psychological evaluation;10 and, finally, Judge Ripley
sentenced Bumpus to the longest sentence ever received by a
burglar in this state, with virtually no explanation, nor even
an acknowledgement that the sentence was unprecedented.
Based on these shortcomings, the court of appeals had
considerable basis for concluding, as it did, that the record
before it did not support the sentence imposed by Judge
Ripley. Its order that the sentence on remand not exceed
fifteen years to serve, however, is unjustified by the terms
of the its own analysis, which fails to indicate in what way
the aggravating factors justified fifteen years, but no more.
After concluding that a comparison with other cases
indicated twenty-three years to be excessive, the court made
no effort to explain why any sentence over fifteen years would
also be excessive. Apart from its statement that "Bumpus'
more extensive criminal history justifies a degree of
disparity," Bumpus, 776 P.2d at 337, the court failed to
explain the disparity between his sentence and that of David
Heacock.
In DeGross v. State, 768 P.2d 134 (Alaska App. 1989), the
trial judge assessed consecutive sentences totaling fifty
years, without specifying the importance of the various
aggravating factors and without benefit of any psychological
evaluation. Id. at 137, 141. The judge made no attempt to
compare DeGross' case to that of similarly situated
defendants. Id. at 141. Like Bumpus, DeGross had a substance
abuse problem that apparently had not been meaningfully
treated. Id. The court of appeals, in that case, concluded
that "the lack of adequate findings [makes it] premature for
us to determine, at this juncture, whether DeGross' fifty-year
term is excessive." Id. at 138.
The court of appeals seemed skeptical in DeGross that fifty
years was an appropriate sentence; we are skeptical here that
Bumpus deserves twenty-three years. But the shortcomings the
court of appeals has identified here are similar to, and
should have the same effect as, the shortcomings in DeGross.
A reviewing court cannot determine the appropriateness of a
sentence where the sentencing court has failed to make
adequate findings or, in the case of psychological
evaluations, has not obtained necessary information.
In adopting the "clearly mistaken"test, we noted that
"[a]nalytically, the clearly mistaken test implies a
permissible range of reasonable sentences which a reviewing
court, after an independent review of the record, will not
modify." McClain, 519 P.2d at 813. Although "permissible
range of reasonable sentences" has never been precisely
defined, it is obviously a function in any particular case of
such consideration as the presence of aggravating factors, the
psychological make-up of the defendant, the need for
isolation, and the sentences imposed in comparable cases--in
short, the very determinations that are not present in this
case. Without articulated findings concerning the factors
that determine the range of reasonable sentences, a sentence
of fifteen years is as arbitrary and unsupportable as a
sentence of twenty-three years. See Wentz, 805 P.2d at 967
n.6 ("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."Quoting DiPietro, The Development
of Appellate Sentencing Law in Alaska, 7 Alaska L. Rev. 265,
296 (1990)).11
The decision of the court of appeals vacating the superior
court's sentence and remanding for resentencing is AFFIRMED.
The instructions given by the court of appeals to the superior
court, directing the latter to impose sentences resulting in
an aggregate term of incarceration not exceeding twenty years
with five years suspended, are REVERSED and ordered VACATED.
MATTHEWS, Justice, with whom RABINOWITZ, Chief Justice,
joins, dissenting.
I agree with the opinion of the court of appeals, and thus
would either dismiss the petition in this case as
improvidently granted, or affirm.
The decision of the court of appeals reaches two
conclusions: first, the aggregate sentence of 23 years
without possibility of parole is excessive; second, on
resentencing, an aggregate sentence of not more than 15 years
should be imposed. Today's majority opinion does not seem to
disagree with the court of appeals' conclusion that the 23-
year sentence is excessive.12 It does, however, disagree with
the court of appeals' directive that Bumpus' sentence should
not exceed 15 years.
If I understand the majority's reasoning correctly, it
reaches this conclusion for two reasons, neither of which
indicates that a 15-year sentence on remand would necessarily
be inappropriate. The first is because, in the majority's
view, the court of appeals has not adequately articulated its
reasons for settling on 15 years, nor has it explained "why
any sentence over fifteen years would also be excessive."
Maj. Op. 15. Second, the majority believes that no sentence
should have been passed in this case without a psychological
evaluation of Bumpus, and that meaningful sentence review
without such an evaluation is impossible.
The majority's point concerning a psychological evaluation
is reasonably arguable. At worst, psychological testing may
cause needless delay and expense; at best it may bring out new
information which is relevant in sentencing Bumpus. I would
not reverse and remand for this reason, however, because at no
point in these proceedings has either party requested a
psychological evaluation, nor is there anything in the record
which suggests a need for an evaluation.
The majority's point that the court of appeals did not
adequately explain its reasons for concluding that Bumpus'
sentence should not exceed 15 years is not reasonable, in my
opinion. The methodology used by the court of appeals in
arriving at the 15-year maximum was to compare similar,
although inevitably not identical, cases. The court found
Good v. State, 590 P.2d 420 (Alaska 1979), and Price v. State,
565 P.2d 858 (Alaska 1977) (both 20-year sentences for
significantly more serious conduct), to set an upper limit,
while Adams v. State, 521 P.2d 516 (Alaska 1974) (11 years),
Smothers v. State, 579 P.2d 1062 (Alaska 1978) (12 years), and
Shagloak v. State, 582 P.2d 1034 (Alaska 1978) (15 years),
suggested an appropriate range. The court also considered the
10-year sentence of Heacock, a member of the same burglary
gang as Bumpus, finding Heacock's case to be in some, but not
all respects, a more aggravated case than Bumpus'. 776 P.2d
at 337. The court decided based on the sentences in these and
a number of other burglary cases where lesser but significant
sentences were given, id. at 338 n.2, that a 15-year sentence
for Bumpus was the maximum which would be appropriate.13
Before the court of appeals began to function in 1980, it
was the task of this court to review sentences for excessive
ness. There are numerous cases where we found a sentence to
be excessive and imposed a maximum sentence on remand. In
these cases, our explanation for the maximum we set was
typically quite brief -- usually no more detailed than the
explanation given by the court of appeals in this case and
often much less detailed. In no case did we ever explain what
the majority wants the court of appeals to explain in this
case, namely why any sentence over the maximum sentence on
remand would be excessive.14
A case in which we used methodology which seems identical to
that employed by the court of appeals in the present case is
Helmer v. State, 616 P.2d 884 (Alaska 1980). Helmer was given
a 30-year composite sentence for rape, assault with intent to
kill, and burglary. We found the sentence to be excessive and
remanded for resentencing, with a proviso that Helmer's
sentence should not exceed 25 years. Our discussion involved
a review of Helmer's history and a comparison of his crime to
other cases. Id. at 886 & n.6.
It is apparent that the majority in today's opinion is
demanding a degree of articulation beyond that which is
reflected in most of the cases where we have found a sentence
to be excessive and remanded for the imposition of a new
sentence not to exceed a maximum term. We are, in other
words, asking the court of appeals to do more than we have
done.
I do not think that a higher level of articulation is
practical or useful. Prior cases give one an idea of
appropriate sentencing ranges. A court may say that a case
fits in one range and not in another because of similarities
with the former and dissimilarities with the latter. Unless
one is prepared to go further and attempt to quantify various
aggravating factors, that is about all that can be done. I do
not read the majority's opinion as calling for a
quantification of aggravating factors, indeed, it seems to
condemn the practice: "it is no longer appropriate for courts
to rigidly define the length of sentence that can be justified
by any particular criterion . . . ." Maj. Op. 9.
For the above reasons, I dissent.
_______________________________
1. The sentence being reviewed here was for two burglaries
in the Mat/Su Valley area. On September 6, 1987, Bumpus and
three others entered the Willow cabin of Gary Olsen. Six days
later, on September 12, the same group entered the Big Lake
cabin of Bill Scholten. During these forays, the ring members
stole property worth more than $9000, including video cassette
recorders, cameras, paintings, jewelry, and weapons.
2. Bumpus was a member of an organized group of five or
more persons whose offenses were committed to further the
group's criminal objectives, AS 12.55.155(c)(14); Bumpus had
three prior felony convictions, AS 12.55.155(c)(15); and
Bumpus had a history of repeated instances of criminal
misconduct similar to the offenses for which he was being
sentenced, AS 12.55.155(c)(21).
3. The goals of sentencing were first summarized by this
court in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
The legislature subsequently codified the "Chaney factors,"
using the following language:
In imposing sentence, the court shall
consider
(1) the seriousness of the
defendant's 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; and
(6) the effect of the sentence to
be imposed as a community condemnation of the
criminal act and as a reaffirmation of soci
etal norms.
AS 12.55.005.
4. Each of the two counts for which Bumpus was sentenced by
Judge Ripley carried a maximum sentence of ten years. AS
12.55.125(d). The law allows the sentencing judge to
"increase the presumptive term up to the maximum term of
imprisonment for factors in aggravation."AS 12.55.155(a)(2);
State v. Wentz, 805 P.2d 962 (Alaska 1991). Assessing the
maximum for both counts and making the sentences consecutive
to one another, and to the Fairbanks sentence, would have
resulted in a term of 30 years.
5. The public defender, as amicus curiae, also invokes the
appellate court's requirement that sentences which exceed the
maximum term for the 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, especially in view of the court's
reliance on Pears. See 767 P.2d at 1174 (citing Pears, 698
P.2d at 1204-05 & n.15).
6. Both the public defender and the state agree that the
court of appeals misread the record in this regard. The
public defender asserts that, although Bumpus was convicted of
concealing stolen property in February 1978 and sentenced to
three years, he served only about a year, beginning in
February 1980, when his probation on an earlier burglary
conviction was revoked. The record is somewhat ambiguous, but
the state's reading makes more sense: Bumpus was in jail from
1978 to 1981, during which time his earlier probation was
revoked. The record does support the view that Bumpus avoided
incarceration between 1981 and 1984.
7. This assertion is erroneous for the reasons noted in the
preceding footnote.
8. Before the convictions in question, Shagloak's criminal
background was very similar to that of Bumpus. However, the
sentences imposed in each case were based on very different
criminal practices. Shagloak's fifteen year sentence came from
one incident of unarmed burglary of an unlocked, occupied
dwelling; he took a ring, some money and a purse, and was
apprehended almost immediately. Shagloak, 582 P.2d at 1038.
Bumpus' current sentence, however, followed his participation
in an organized crime spree lasting several months, which
involved numerous victims and the theft of property worth
thousands of dollars.
9. Although Heacock had only one previous felony
conviction, the appellate court stated that his prior
conviction was "for a more serious offense than any of Bumpus'
prior cases and involved particularly aggravated
circumstances." Bumpus, 776 P.2d at 337. The court further
observed that, in the case before it, Heacock was convicted on
twenty counts, that he was on probation when he committed
these offenses, and that he had been a leader of the burglary
ring. The court characterized Bumpus, on the other hand, as
"a follower, . . . [whose] participation appears to have been
more limited, both in duration and scope." Id.
10. In contrast, the presentence report on Shagloak
included six mental evaluations. Shagloak, 582 P.2d at 1040
n.15.
11. Judge Ripley restricted Bumpus' eligibility for parole
and the court of appeals disapproved this restriction.
Neither court provided any discussion. If the sentencing
court on remand again restricts parole eligibility, it "should
articulate on the record its reasons for doing so"in order to
allow appropriate review. Jackson v. State, 616 P.2d 23, 25
(Alaska 1980).
12. "Based on these shortcomings, the court of appeals had
considerable basis for concluding, as it did, that the record
before it did not support the sentence imposed by Judge
Ripley." Maj. Op. 15. "[W]e are skeptical here that Bumpus
deserves twenty-three years." Maj. Op. 16.
13. The court might also have added that the prosecutor in
Bumpus' case recommended an aggregate sentence in the range of
10 to 15 years with 15 years being "just about right."
14. An example is Preston v. State, 615 P.2d 594 (Alaska
1980). Preston was sentenced to five years for burglary in a
dwelling, her second felony. We concluded that she should not
receive more than three years. While we gave reasons why the
five-year sentence was excessive, we did not attempt to
justify the three-year maximum or to say why, for example, a
four-year sentence would also have been excessive. All we
said was: "In our opinion, Preston should not be sentenced to
imprisonment for more than three years . . . ." Id. at 604.
An almost equally brief discussion of the maximum on remand
appears in Kanipe v. State, 620 P.2d 678, 680 (Alaska 1980),
where a four-year sentence for burglary was reduced to not
more than two years. In Fields v. State, 629 P.2d 46, 53
(Alaska 1981), a sentence of five years for a securities fraud
conviction was found excessive and reduced to three years to
serve plus a fine. Our total discussion on the reason for the
maximum sentence was as follows: "In our opinion, the maximum
sentence should not exceed a total of six years, with three
years to be suspended and the defendant to be on probation
during the suspended period." Likewise, in Huff v. State, 598
P.2d 928, 936 (Alaska 1979), the discussion of the reason for
a three-year maximum sentence on remand was very general: "We
feel that a prison sentence of three years to serve is
sufficient sanction under the facts of this case to properly
serve the Chaney goals." See also Hintz v. State, 627 P.2d
207, 211 (Alaska 1981) (with no reasons given for the sentence
on remand, a sentence of life plus 20 years was reduced to a
sentence of 30 years); Amidon v. State, 565 P.2d 1248, 1263
n.47 (Alaska 1977) (only discussion of maximum sentence on
remand was a footnote to another case).
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