Betzner v. State

PEGUES, Superior Court Judge,

dissenting.

I respectfully dissent. The standard for review of a sentence is not whether the reviewing court agrees with the sentencing court’s reasons, but whether its sentencing decision has a “reasoned basis” and wheth.er the sentence imposed is “not clearly mistaken.” Hagberg v. State, 606 P.2d 385, 387 n. 3 (Alaska 1980); Hughes v. State, 513 P.2d 1115, 1122 (Alaska 1973).

The majority opinion shows beyond dispute that Judge Cranston’s sentencing decision had a reasoned basis (in Chaney terms, deterrence of Betzner and others and community condemnation), and there is not the least suggestion that the sentence imposed is clearly mistaken. “It is the [sentencing] court’s prerogative to decide the weight and order of priority to be given to each [Chaney ] goal, based on the circumstances of the individual case.” Smith v. State, 691 P.2d 293, 295 (Alaska App.1984).

It is not the function of this court to remand because it disagrees with a sentence or with the reasons for the sentence, unless those reasons are based on an incorrect legal premise. Campbell v. State, 594 P.2d 65, 67 n. 6 (Alaska 1979).

The majority and I disagree in our reading of the sentencing record in this case. I read it as showing that Judge Cranston (who, after all, fashioned the sentence) considered the suspended time to be conditioned expressly upon Betzner’s testifying truthfully at the trials of his confederates. That is, but for the testimony, the time would have been imposed. Assuming that the time so suspended would not have been clearly excessive had it been originally imposed, its suspension on that condition does not offend any sentencing guidelines. Indeed, it is entirely consistent with the provisions of AS 12.55.155(d)(12), as subsequently amended, which makes assistance in prosecuting others a mitigating factor. Accordingly, the sentence subsequently imposed was not based on an incorrect legal premise or impermissible factor.

Of course, if the imposition of the suspended time were not consistent with the Chaney factors (an unlikely event where, as here, the time imposed is not shown to be clearly excessive), then it could be con-*1160eluded that the condition was itself based on an incorrect legal premise and a remand would be proper. However, Judge Cran-ston’s careful analysis of the applicable Chaney criteria, albeit prompted by the prosecutor, shows that enforcement of the condition was entirely consistent with those criteria: deterrence of Betzner and others like him and community condemnation of Betzner’s conduct.1

I also disagree that the sentences for contempt require re-examination. Deterrence alone justifies them.

. It is not only unfair to characterize Judge Cranston’s Chaney analysis as a rationalization but it is also irrelevant. The issue is not whether it was a rationalization. Rather, the issue is whether the factors which were considered and applied gave incorrect weight to the sentencing goals, given the nature of the offense, the character of the offender, and the need to protect society. Campbell, 594 P.2d at 67 n. 5. Clearly they did not. To the contrary, the factors considered were right on the mark.