Ahvik v. State

BURKE, Justice,

dissenting,

with whom MATTHEWS, Justice, joins.

I dissent. The record in this case fails to convince me that the superior court was clearly mistaken in imposing a five year term of imprisonment. Thus, in keeping with our established standard of review in such matters, I would affirm the court’s sentence.1

While giving lip service to the “seriousness of the crime,” the majority, in my opinion, places undue emphasis on a single factor: rehabilitation of the offender. Virtually ignored is the need for a sentence “effectuating the goal of community condemnation, or the reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves.” State v. Chaney, 477 P.2d 441, 447 (Alaska 1970).2

*1255The trial judge, on the other hand, made a valiant effort “to determine the priority and relationship” of the various factors that should be considered in sentencing. McClain v. State, 519 P.2d 811, 813 (Alaska 1974).3 I am unable to say that his decision was clearly wrong. Id.

. In State v. Chaney, 477 P.2d 441 (Alaska 1970), this court said:

Sentencing is a discretionary judicial function. When a sentence is appealed, we will make our own examination of the record and will modify the sentence if we are convinced that the sentencing court was clearly mistaken in imposing the sanction it did.

477 P.2d at 443-44 (footnote omitted). See McClain v. State, 519 P.2d 811 (Alaska 1974) (“clearly mistaken test” adopted as exclusive standard for review of sentence appeals).

. In State v. Wassilie, 578 P.2d 971 (Alaska 1978), we quoted with approval the following statement by Mr. Justice White:

[Rape] is highly reprehensible, both in a moral sense and in its almost total contempt for *1255the personal integrity and autonomy of the female victim and for the latter’s privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the “ultimate violation of self.” It is also a violent crime because it normally involves force or the threat of force or intimidation, to overcome the will and capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community’s sense of security, there is public injury as well.

578 P.2d at 973-74, quoting Coker v. Georgia, 433 U.S. 584, 597, 97 S.Ct. 2861, 2868, 53 L.Ed.2d 982, 992-93 (1977).

. Ironically, the trial judge himself gave careful consideration to the very factors used by the majority to justify its decision that part of the sentence should be suspended, stating:

[The sentence] might be a little — it might not be severe enough, but because of your age, the fact that the victim in this case was not seriously injured, the fact that apparently the victim in this particular case . . . bears no . . ill will, ill feeling or has any physical or emotional problems at the present time, the court feels that five years is appropriate . . . and if it were any other kind of an offense, because of your age and your lack of a prior record, the court might very well be inclined to give you a suspended imposition of sentence or certainly at least suspend a portion of this, but because it is a violent type crime, the court cannot in good conscience do that.