Donlun v. State

OPINION

Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, ERWIN and •BURKE, JJ. RABINOWITZ, Justice.

In Donlun v. State, 527 P.2d 472 (Alaska 1974), we held that the superior court erred when it imposed a maximum sentence of 10 years, with 4 suspended, upon Robert Donlun’s conviction of the crime of burglary in a dwelling.1 The primary issue in Donlun’s first appeal centered on the applicability of AS 11.20.080 to the sentencing proceedings which culminated in Donlun’s receiving a 10-year sentence. Recognizing that AS 11.20.080 provided for a range of sentences which in turn were dependent upon the existence of particular aggravating facts set forth in the statute, we held that the maximum sentence prescribed by the aggravated circumstances may not be considered by the sentencing court unless such circumstances are set forth in the indictment, information, or complaint, and proven at trial.2

Review of the sentencing proceedings in Donlun’s first appeal led us to the conclusion that the superior court believed that the 20-year maximum sentence instead of the 10-year maximum sentence was applicable. In light of this circumstance, we said:

The fact that the sentence did not exceed the maximum allowed for burglary of an unoccupied dwelling not at night —10 years — is of no consequence, for if the sentencing court had believed 10 years, rather than 20 years, to be the maximum possible sentence, it might well have imposed a more lenient sentence. We therefore believe that appellant should be resentenced.3

Upon remand Donlun was sentenced to a term of 5 years, with provisions that he not be eligible for parole until he serves one-third of his sentence,4 and that he be ineligible for work furloughs during his incarceration. This second sentence appeal followed.

The gist of Donlun’s instant appeal is that the superior court based its revised 5-year sentence “upon speculations and inferences which are unsupported by the record.” As a consequence of the superior court’s consideration of such irrelevant and, in the appellant’s view, prejudicial matters, Donlun requests that the 5-year sentence be reversed and he be resentenced *371by a tribunal which is capable of impartially determining an appropriate sentence.

Examination of the record of the sentencing proceedings which were held subsequent to this court’s remand shows that the sentencing judge placed substantial emphasis upon the circumstance that Donlun had not been regularly employed at the time he was arrested. From this fact the superior court expressly inferred that Donlun had committed other crimes and that his apprehension for the crime of burglary in a dwelling was merely the first time Donlun had been caught. More particularly, the record discloses that the sentencing judge stated:

Also another thing I considered, I think the presentence report indicated that there was no means of support this man showed for pre — time prior to his committing this crime. So putting everything together indicated that this was the first time he was caught ....

At a subsequent point in his sentencing remarks, the superior court judge further elaborated on this theme in the following manner:

I think the defendant’s lifestyle was shown to me during the trial as well as during the sentencing and presentence report that his lifestyle was one that he just was a leech on society living off of it somehow or other, probably illegally and he was convicted of this one. .

In our opinion the foregoing remarks, in and of themselves, so tainted the sentencing proceeding in question that the relief Donlun has requested should be granted. For here the sentencing court in essence accused Donlun of perpetrating unspecified crimes and sentenced him, at least partially, on the basis of these assumptions. Nothing in either the record of Donlun’s trial, the presentence report, or the sentencing proceedings warrants the inference that the sentencing court drew from the fact of Donlun’s unemployment.5 We are not implying that the fact of whether or not one is industrious may not be considered in the sentencing process, but mere unemployment is not a basis for an assumption that other crimes have been committed by a defendant in the absence of affirmative evidence. One can have a socially unproductive lifestyle and yet not take from society in an illegal or criminal manner. In past decisions we have condemned reliance by the sentencing court on such impermissible considerations. Mattern v. State, 500 P.2d 228, 234-35 (Alaska 1972); Galaktionoff v. State, 486 P.2d 919, 923-24 (Alaska 1971); Waters v. State, 483 P.2d 199, 202-03 (Alaska 1971).

One additional facet of the case requires our consideration. As we noted previously, the sentencing court provided as part of its judgment and commitment that Donlun was to be ineligible for participation in work furlough programs.6 We fail to discern the basis for the superior court’s determination. Work furloughs are one method of altering for the better a defendant’s lifestyle, one of the sentencing goals enunciated by the trial judge, yet no reason was given as to why this device was made unavailable to Donlun in the case at bar. Absent a factual basis for the superior court’s order prohibiting work furloughs, we conclude that this portion of the trial court’s sentence was erroneous.

The case is remanded to the superior court with directions to the presiding superior court judge of the Third Judicial Dis*372trict to set the matter for resentencing before a different superior court judge.7

Reversed and remanded for further sentencing proceedings.8

. The salient facts of Donlun’s background relevant to sentencing were set forth in that opinion. We briefly reiterate them as background information helpful in understanding our resolution of this appeal. At the time of sentencing Donlun was a 21-year-old Native youth who lived with his mother in the S & S Apartments in Anchorage. The burglary was Donlun’s first felony conviction. His only other convictions involved two traffic-related cases. When confronted by his accusers, Donlun voluntarily returned the stolen property and admitted the crime. He had a history of alcohol abuse since age 12, and at the time of trial, he was reported to be making excellent progress in an alcohol treatment program and demonstrated a willingness to continue.

. AS 11.20.080 establishes three ranges of sentences: 1 to 10 years for a simple burglary in a dwelling, 1 to 15 years if the burglary occurred at night, and 1 to 20 years if the burglarized dwelling was occupied at the time of the offense.

. Donlun v. State, 527 P.2d 472, 474 (Alaska 1974) (footnote omitted).

. See AS 33.15.230.

. At the sentencing proceedings held upon remand, Donlun’s counsel alluded several times to Donlun’s negative lifestyle. Nothing in counsel’s remarks can be viewed as an admission that the 20-year-old Donlun supported himself by a life of crime or that he took from society in an illegal manner.

. AS 33.30.250(a) authorizes the Commissioner of the Department of Health and Social Services to permit a prisoner to participate in work furloughs “ . . . unless the court at the time of sentencing has ordered that the person not be granted work furloughs.”

. In State v. Chaney, 477 P.2d 441, 443 (Alaska 1970), we said that one of the general objectives of sentence review is

to promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process ....

Careful review of the record has led us to the conclusion that resentencing before a different superior court judge will best effectuate these objectives in the instant case.

. Our disposition makes it unnecessary to decide any other issues to be raised in this appeal.