Houston v. State

*1030BRYNER, Chief Judge,

dissenting.

Although I do not believe that the sentence imposed by the superior court in this case — fifteen years with three suspended— would necessarily be excessive, I am unable to conclude, as does the majority of the court, that the superior court adequately explained its sentence. Since I believe it is a well-established proposition that proper appellate review is not possible when a sentencing court does not adequately set forth, on the record, its reasons for imposing a particular sentence, I respectfully dissent.

As the state has conceded in this appeal, Judge Buckalew’s sentencing remarks did not specifically articulate the critical sentencing factors enumerated in State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). However, the state argues, and the majority of the court agrees, that the sentencing court’s remarks were sufficient under Evans v. State, 574 P.2d 24, 26 (Alaska 1978), in which the supreme court held that the trial court “need not recite the goals of sentencing as long as it is clear that it has considered these goals.” The majority’s opinion acknowledges the decisions of the Alaska Supreme Court emphasizing the importance of a full explanation of a sentencing decision by the trial court. See, e.g., Alpiak v. State, 581 P.2d 664, 665 n.2 (Alaska 1978); Perrin v. State, 543 P.2d 413, 418 (Alaska 1975); State v. Chaney, 477 P.2d at 447. Yet the majority concludes that, in this case, “the trial court adequately addressed the facts in a manner consistent with” the mandate of these cases.

I cannot agree with the majority’s assessment of the adequacy of Judge Buckalew’s sentencing remarks. In my view, the sentencing remarks of Judge Buckalew do not make it clear that he appropriately considered the requisite Chaney goals. The explanation given by the judge provides little if any insight into which goals were *1031considered, the amount of weight given to the various goals, or the facts deemed significant by the judge in determining the amount of weight to be given to these sentencing goals.

Careful examination of the sentencing court’s remarks reveals their deficiency. The initial portion of Judge Buckalew’s sentencing explanation consisted of a recitation of the facts that had been taken into account when Houston was originally sentenced:

[W]hen I sentenced you to 15 years for the second degree murder I took into consideration your age and your background and your problem with alcohol and your substantial time in Vietnam. Whether that had anything to do with this, I don’t know, but I listened to the psychiatrist which would suggest that this might have been an automatic reaction; I am not persuaded that that’s really all that meaningful in this situation

These comments are unrelated to the Chaney criteria. To the extent that they may have been intended to refer back to comments made by the judge when he imposed Houston’s original sentence, the comments must be deemed inappropriate. Our supreme court has specifically prohibited the practice of “readopting” prior sentencing explanations in the course of resentencing a defendant. See Amidon v. State, 604 P.2d 575, 578 n.7 (Alaska 1979).

Judge Buckalew next stated his conclusion that Houston’s offense was the worst in its category: “When I look at these facts and think in terms of manslaughter, this would be the most aggravated type of manslaughter.” While this statement clearly articulates the judge’s assessment of the seriousness of the offense, as with his initial statement, it gives little indication that consideration was given to the Chaney criteria before sentence was imposed.

This brief statement was followed by the conclusory indication that Judge Buckalew felt compelled to make some adjustment m Houston’s original sentence in light of the reduced charge:

But my legal training and ideas of justice demonstrate to me that on resentencing, some adjustment has to be made.

Certainly, this reference to “my legal training and ideas of justice” cannot be taken as a clear indication that the judge had given consideration to the Chaney criteria.

Judge Buckalew next simply pronounced the new sentence:

I’m going to sentence you to 15 years and I’ll suspend 3 of it and you’ll be placed on probation then for a period of time when you’re released.

In conjunction with this statement, the judge said:

I think that having some contact with a probation officer upon release is probably going to be helpful in this case ....

This comment, insofar as it can be construed as an oblique and passing reference to the need to rehabilitate Houston, is the only one made by the judge in the course of his sentencing explanation that can conceivably be viewed as indicating any consideration of the Chaney criteria.

The judge’s final remarks in sentencing Houston did nothing more than express recognition of Houston’s progress while incarcerated:

And Mr. Houston, I am pleased with your progress while in confinement and I considered that in my sentence.

While the judge did indicate that he took note of Houston’s progress in determining his new sentence, it is crucial to note that this remark was conclusory, not explanatory, in nature. This comment tells nothing of the extent to which Houston’s progress was deemed significant in fashioning his sentence, and in no way does it indicate that the judge’s recognition of Houston’s progress was evaluated in light of the Chaney criteria.1

*1032I have set out in detail and commented upon the trial court’s sentencing remarks in this case not to belabor what I consider to be their inadequacy, but rather to illustrate a point. The majority acknowledges that these remarks constitute “the full explanation given by the sentencing judge.” On the basis of these remarks the majority concludes that the sentencing judge, even though he did not specifically mention the Chaney sentencing goals, complied with the requirement of Evans v. State, 574 P.2d at 26, making clear the fact that all Chaney goals were actually considered. Yet, as I have indicated above, except for the cursory reference to the benefits of probation, the judge’s sentencing explanation was utterly devoid of any indication, either explicit or implicit, that the Chaney goals were considered. Accordingly, I believe that the majority’s decision ascribes a significance to the superior court’s sentencing explanation that is simply unwarranted.

My disagreement in this case is not limited to the conclusion that the majority has misread the sentencing remarks of the superior court, giving them too much significance. State v. Chaney imposes upon trial courts the duty to consider the five basic sentencing goals in the course of imposing a sentence. Chaney also requires an appellate court, reviewing the sentencing decision of a trial court, to ascertain that the basic sentencing goals were appropriately considered. It is for the sentencing court to establish the priority and relationship of these goals, based on the particular circumstances of each case. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973). On appeal, the reviewing court, by an independent reading of the record, must ascertain that the priority given to the Chaney goals by the sentencing court was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

Thus, the appellate court’s duty of determining whether the sentencing court properly considered the Chaney sentencing goals and whether proper weight was allocated to the various goals is of primary importance in a sentence appeal. Yet it is virtually impossible, when confronted by a record that is utterly silent as to the sentencing court’s reasons for imposing sentence, to make a realistic determination as to whether the lower court was clearly mistaken. See, e.g., Soroka v. State, 598 P.2d 69 (Alaska 1979); Andrews v. State, 552 P.2d 150, 154 (Alaska 1976). Without an ample discussion of the sentencing court’s reasons for imposing sentence, the reviewing court has no basis for determining whether the sentence was clearly mistaken, and, accordingly, will never be in a position to state with assurance that a sentence was not clearly mistaken.2

*1033In my opinion, this situation exists in the present case. The cursory and highly con-clusory remarks made by Judge Buckalew preclude an adequate determination on appeal, as mandated by McClain v. State, as to whether the sentence imposed below was clearly mistaken.

The majority opinion in the present case manages to avoid this problem by reliance on a standard of review that, in my view, ignores the requirements of Chaney, Asito-nia, and McClain. The majority opinion, in affirming Houston’s sentence, states:

[W]e are unable to conclude that the sentence imposed reflects improper consideration or balancing of isolation, deterrence, and affirmation of community norms.

Thus, the majority’s affirmance is based not upon the conclusion that the sentencing court properly balanced the relevant Chaney goals, but rather on a determination that the majority is unable to say that the Chaney goals were not properly balanced. In my view this holding signifies a radical departure from established norms of sentence review, for implicit in the majority’s reasoning is the conclusion that a sentence will always be upheld on appeal unless the record contains an affirmative indication that the sentencing court’s reasoning was clearly mistaken.

Reliance on such logic sets a dangerous precedent. In any case where a trial court imposes a sentence without explanation, remaining totally silent as to its reasons for formulating the sentence imposed, the logic espoused by the majority opinion would inevitably compel affirmance of the sentence on appeal; a sentencing record silent as to the trial court’s reasons for imposing sentence would never affirmatively reflect “an improper consideration or balancing of [the Chaney goals].” If the reasoning of the majority’s opinion is to be taken seriously, then trial courts could proceed to impose sentences in a summary fashion, without explanation or comment, secure in the knowledge that their sentences would be upheld because the appellate courts would find no affirmative indication of an improper consideration of the Chaney goals.

If the sentencing remarks of the superior court in this case were sufficient, it would be a relatively simple task, on appeal, to apply the standard enunciated in McClain v. State and to determine whether the sentence imposed was clearly mistaken. I believe that it is only because the trial court’s explanation of its sentence was so manifestly inadequate that the majority opinion has had to seek recourse in reasoning that, taken to its logical conclusion, would abrogate the need for any sentencing explanation whatsoever.

It is undisputed that full explanation of a sentencing decision contributes to the rationality of the sentence, facilitates the reviewing court’s evaluation of the correctness of the sentence, and fosters public confidence in the criminal justice system. An ample explanation can also assist correction authorities in dealing with an offender and have therapeutic value in helping the defendant accept his sentence without bitterness. Alpiak v. State, 581 P.2d at 665 n.2; Perrin v. State, 543 P.2d at 418; State v. Chaney, 477 P.2d at 447. Here, I believe that the abbreviated sentencing explanation given below furnishes an entirely inadequate basis to serve any of these purposes.

Particularly where, as here, the sentencing judge has been provided with substantial new material on resentencing concerning the defendant, it is incumbent upon him to discuss this new material and to indicate if and how it has changed his assessment of such factors as the defendant’s potential for rehabilitation and his possible danger to society. From the sentencing judge’s comments here, it appears that he considered little except the technical change in the *1034crime charged, reacting to this change by adjusting Houston’s original sentence in an almost mechanical fashion. It is impossible to tell which factors the sentencing judge thought pointed toward lengthy imprisonment, what weight the various factors received, or exactly what was considered in shaping the sentence. Where the sentencing explanation is sparse, the difficulty of informed appellate review is greatly increased. Beyond being deprived of a sufficient basis for determining whether the decision of the sentencing court was clearly mistaken, the reviewing court cannot be certain that impermissible considerations did not enter into the fashioning of the sentence. Where, as here, the remarks of the sentencing court were so sparse as to deprive the appellate court of any assurance that the judge considered all of the requisite sentencing goals, or that he balanced the relative importance of those goals in light of the particular circumstances of the case, then the task imposed upon the appellate court becomes more than merely burdensome; it becomes unrealistic.

For the foregoing reasons, I cannot agree with the majority’s decision to affirm Houston’s sentence. While I would not now hold that the sentence was excessive, I do not believe that a reasoned decision on this issue can be made without an adequate sentencing explanation by the superior court— an explanation reflecting appropriate consideration and application of all of the Chaney sentencing goals in light of the information available to the court at the time of sentencing.3 Thus, I. would order the sentence vacated and remand to the superior court for resentencing based upon a thor*1035ough consideration and discussion of the Chaney goals.

. The lack of any indication that Houston’s progress during the four-year interval between his initial sentencing and his resentencing was considered in light of the Chaney criteria is of particular importance, since the supreme court has expressly determined that, in sentencing an *1032offender whose crime was committed a substantial period of time prior to the date of sentencing, the sentencing court, in its application of the Chaney criteria, must consider the offender’s progress and his status at the time the sentence is imposed. Application of the Chaney criteria to the offender as he was at the time of the crime in such circumstances is inappropriate. Padie v. State, 594 P.2d 50, 62-63 (Alaska 1979).

. Cf. Johnson v. State, 631 P.2d 508, 512-513 (Alaska App.1981) (trial court’s failure to make adequate findings impinges upon the defendant’s right to appeal). Beyond furnishing an inadequate basis for appellate review, the extreme brevity of the sentencing judge’s remarks in this case gives rise to a substantial question as to whether that judge gave full and rational consideration to Houston’s sentence before it was imposed. An ample explanation by a sentencing judge of the sentence imposed provides assurance that the sentence was carefully thought through and adequately considered before its imposition. No such assurance exists where sentencing remarks are cursory in nature, affording virtually no insight to the thought processes of the sentencing judge. In such cases, the lack of an explanation may be nothing more than a means to avoid coming to grips with particularly difficult sentencing problems.

The lack of a full explanation here leaves this case open to such an interpretation. The possibility that the sentence imposed was not carefully reasoned cannot be precluded.

In light of the deficient sentencing remarks in this case, I disagree with the majority’s view that resentencing in this case would be a futile gesture. Given the distinct possibility that Houston’s sentence was not carefully and dispassionately thought out by the sentencing court, it is difficult to understand how the majority can confidently predict. that Houston would, in fact, be destined to the same fate if *1033Judge Buckalew, upon resentencing, took the time to analyze carefully and explain fully an appropriate sentence in light of the Chaney criteria. Similarly, I fail to understand how the majority can state with assurance that Houston’s sentence could not in fact have been based upon faulty legal or factual premises, when Judge Buckalew’s failure to explain the sentence that he imposed precludes any informed decision as to the specific factors relied upon by the judge to support Houston’s sentence.

. While I would not, at this juncture, rule out the possibility that a sentence of 15 years with 3 suspended would be warranted in the present case, I believe that at least one facet of Houston’s sentence requires additional comment. When Houston’s sentence was originally imposed, the tried court recommended both psychiatric treatment and alcohol therapy. Four years later, at resentencing, it was apparent that Houston had been provided with neither psychiatric therapy nor alcohol rehabilitation. The record in the present case is particularly clear in establishing that the crime of which Houston was convicted was the product of a severe alcohol problem on Houston’s part, with possible psychological difficulties underlying the alcohol abuse. Although the precise motivation for Houston’s actions may not be clear, the direct link to alcohol abuse is manifest, and in this regard the majority is wrong in terming his crime an “unexplained homicide.” This is not a case in which an offender has received prior opportunities for rehabilitation, but failed. See, e.g., Tritt v. State, 625 P.2d 882, 889 n.10 (Alaska App.1981); Wire v. State, 621 P.2d 18, 19 n.3 (Alaska App.1980). To the contrary, in the present case, Houston had taken the initiative and sought help for his alcoholism only a matter of days before this offense occurred. In response to his efforts, Houston received only minimal assistance, having been “dried out” over a two-day period at the Air Force hospital and released without any further provision for counselling, therapy, or other assistance. Under these circumstances, Houston’s rapid return to his well-established pattern of alcoholism was all but a foregone conclusion. It is undisputed in this case that Houston’s crime resulted directly from his alcohol abuse, and that, to the extent that Houston poses a danger to society, it is by virtue of his alcoholism and the possible psychological problems underlying it. For these reasons, when Houston was originally sentenced, the trial court’s recommendations for alcohol rehabilitation and psychiatric therapy were appropriate and justified measures. See, e.g., Notaro v. State, 608 P.2d 769 (Alaska 1980); Good v. State, 590 P.2d 420, 424-25 (Alaska 1979).

While the recommendation for alcohol rehabilitation and psychiatric counseling may have been realistic and appropriate measures when Houston’s sentence was originally imposed, upon Houston’s resentencing, four years later, it was evident that the court’s original recommendations had gone unheeded. Contrary to the implication of the majority opinion, nothing in the record indicates a “difference of opinion” between the court and the Division of Corrections as to the defendant’s need for therapy. The only logical inference I can draw from the record is that the court’s initial recommendation was simply ignored. As the majority opinion points out, there is no assurance that Houston does not still constitute a danger to the community. However, the reason for this is the total lack of alcohol or psychiatric treatment afforded to Houston by the Division of Corrections over a four-year period. 'While trial courts must generally provide for rehabilitation of offenders through the use of sentencing recommendations, and while, under ordinary circumstances, it must be assumed that appropriate recommendations of a sentencing court will be heeded, judicial intervention and the exercise of more stringent judicial control over rehabilitation becomes necessary when there has been a demonstrated failure by the Division of Corrections to provide an appropriate course of treatment. LaBarbera v. State, 598 P.2d *1035947, 949 (Alaska 1979); Abraham v. State, 585 P.2d 526, 530-33 (Alaska 1978). See also AS 12.55.088 and Alaska R.Crim.P. 35(b).

In the present case, despite the lack of psychiatric or alcohol rehabilitation or therapy, Houston had been a model prisoner over a period of four years’ incarceration. What is particularly perplexing is that, although the sentencing court originally made appropriate recommendations for Houston’s treatment and rehabilitation, upon resentencing, when it was apparent that its original recommendations had gone unheeded, instead of taking stronger measures aimed at assuring Houston’s rehabilitation, the sentencing court — with utterly no explanation whatsoever — imposed a sentence that failed even to renew its original recommendations for treatment. The failure of the sentencing court to address Houston’s need for alcohol counselling and psychiatric therapy is a virtual paradox. Regardless of the length of sentence Houston receives, it is certain that he will eventually be released from prison and reintegrated into society. If Houston is released without the problems that caused the tragic loss of life resulting in his conviction having been realistically addressed, it is predictable that he will pose as much of a potential danger as he did when first imprisoned. We have recently stated:

There is a need for courts to address the problem of alcohol-related violence in serious as well as less serious cases. Courts are encouraged to look beyond the alternatives of incarceration and ordinary probation for creative solutions to the difficult rehabilitative problems posed by the alcohol-abusing offender.

State v. Ahwinona, 635 P.2d 488, 491 n.4 (Alaska App.1981). I believe it particularly apparent in this case that, in terms of Houston’s rehabilitation and protection of the community, a lengthy sentence will, in and of itself, accomplish little or nothing unless Houston’s alcohol and psychological problems are realistically addressed.

To me, the sentencing court’s failure even to renew its original recommendations for treatment is yet another indication of the inadequacy of the consideration given to applicable sentencing criteria in imposing Houston’s new sentence. Contrary to the suggestion in the majority opinion, I do not think that the lack of any recommendation can be viewed as a mere “oversight.” Rather, I think the omission is symptomatic. I am convinced that, had Judge Buckalew taken the time to express his reasons for sentencing Houston in a careful and thorough manner, he would not have neglected to address the issue of Houston’s need for alcohol rehabilitation and psychiatric counseling.

As matters now stand, I would emphasize that the provisions of Alaska R.Crim.P. 35(b) permit the sentencing court to modify a sentence “at any time during a term of imprisonment if it finds that conditions or circumstances have changed since the original sentencing hearing such that the purposes of the original sentence are not being fulfilled.” See Fermoyle and Joe v. State, 638 P.2d 1320 (Alaska App.1982). I see no reason why the provisions of this rule would not be applicable to Houston’s case, and I would urge the sentencing court to give serious consideration to the modification of Houston’s sentence in order to assure that his alcohol abuse problem and any underlying psychological difficulties which he may have are treated as an integral part of his sentence and in a realistic manner. Clearly, in light of Houston’s past treatment, more decisive measures are called for than a mere reinstatement of the original recommendation for treatment.