Garrison v. State

SINGLETON, Judge,

concurring.

I agree with Judge Coats’ resolution of the “co-counsel” issue and further agree that a composite sentence of twelve years for kidnapping, first-degree physical assault, and first-degree sexual assault was not too lenient. As the supreme court has made clear, it is not the appellate court’s function to impose sentence or to specify a specific sentence appropriate for a specific case. See State v. Graybill, 695 P.2d 725, *470729 (Alaska 1985) (trial court has primary responsibility to determine appropriate sentence).1 Rather, our sentence review power is limited to determining a range of appropriate sentences for offenders whose conduct and background are roughly equivalent and then comparing the sentence under review to that range to determine whether it is within or without the range, i.e., too severe or too lenient. See, e.g., McClain v. State, 519 P.2d 811 (Alaska 1974), where the court said:

In review of sentences imposed by a lower court, this court has formulated different standards of appellate review. The most common formulations are the clearly mistaken test and the zone of reasonableness test. Under the clearly mistaken test, the sentence will be modified only in those instances where the reviewing court is convinced that the sentencing court was elearly mistaken in imposing a particular sentence. In the zone of reasonableness test, the reviewing court should determine whether the lower court imposed a sentence within the range of alternatives which comport with the Chaney guidelines. Both tests require us to make an independent review of the record.
Implementation of these two formulations reveals a similar analytical frame*471work which accounts for their combined use in some cases. Analytically, 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. The zone of reasonableness merely describes that range of reasonable sentences which after an independent review of the record will not be modified by the reviewing court.
[[Image here]]
In order to avoid the understandable confusion resulting from the use of two standards to describe the same analytical process in the area of sentence appeals, we now adopt the clearly mistaken test [as the proper descriptive phrase] in the review of sentence appeals.

Id. at 813-14 (citations omitted).2 Obviously, reasonable judges could differ as to an appropriate sentence for Garrison. He committed a particularly serious offense, and the legislature has prescribed a very broad range of appropriate sentences. Nevertheless, in determining an appropriate sentence, the trial court should be governed by the principle of parsimony. See, e.g., Pears v. State, 698 P.2d 1198, 1204-05 (Alaska 1985) (court should impose the least severe sentence capable of satisfying the Chaney criteria). Sentences in the ten-tó fifteen-year range must be reserved for the most serious offenders committing the most serious offenses. See, e.g., Graybill, 695 P.2d at 729; Covington v. State, 747 P.2d 550, 553 (Alaska App.1987); Mosier v. State, 747 P.2d 548, 549 (Alaska App.1987). Such a sentence will virtually always satisfy the Chaney criteria of rehabilitation, deterrence of the defendant and others, and affirmation of community norms. Longer sentences usually serve the sentencing goal of isolation which is reserved for persistent recidivists and antisocial personalities. See Pruett v. State, 742 P.2d 257, 264 (Alaska App.1987); Skrepich v. State, 740 P.2d 950, 956 (Alaska App.1987) (lack of prior conviction precludes confident prediction that defendant cannot be deterred or rehabilitated by short prison sentence).3

Recognizing a ten- to fifteen-year sentencing range for an offense as serious as one involving both rape and kidnapping *472would not be inconsistent with prior cases. For example in Lacy v. State, 608 P.2d 19, 23 (Alaska 1980), the defendant kidnapped two women at gunpoint in their own car at an Anchorage nightclub, drove them to a secluded spot, raped one woman and attempted to rape the other. As a result, he was convicted of one count of rape under former AS 11.15.120; two counts of assault with a dangerous weapon in violation of former AS 11.15.220; two counts of kidnapping in violation of former AS 11.15.260; and one count of petty larceny in violation of AS 11.20.140. The supreme court upheld his concurrent sentences of fifteen years’ imprisonment for rape, fifteen years’ imprisonment for each kidnapping count, five years’ imprisonment for each assault with a dangerous weapon count, and six months’ imprisonment for petty larceny. See also Johnson v. State, 662 P.2d 981, 990 n. 8 (Alaska App.1983) (concurrent sentences of fifteen years with five years suspended for kidnapping and rape, where defendant had prior felony conviction, affirmed); and Williams v. State, 652 P.2d 478 (Alaska App.1982) (concurrent sentences for kidnapping and rape totaling twenty years with five years suspended affirmed).

Nevertheless, I agree with Chief Judge Bryner that the broad category of conduct included within the kidnapping statute, coupled with the substantial sentencing range from five to ninety-nine years, and the fact that kidnapping convictions will typically include conviction for other violent crimes, potentially resulting in consecutive sentences, justifies our establishing criteria appropriate to composite sentences for kidnapping and ancillary offenses. In order to arrive at an appropriate range of sentences, it seems to me that it is necessary to review the history of kidnapping statutes. When we do so, it becomes clear the legislature has provided Draconian penalties for kidnapping in order to address a number of related concerns.

First, and foremost, is the fear that lesser penalties for kidnapping than for murder would encourage assailants to abduct their victims, kill them, and hide the bodies in order to minimize the risk of a murder conviction. While it is not necessary that the authorities find the body of the victim in order to establish an element of the crime, i.e., the corpus delicti, the state’s burden of proving murder is substantially increased if the body cannot be found. Even when a body is found, the circumstances of the death may be ambiguous if the defendant has taken the victim to a secluded spot in order to decrease the state’s ability to prove murder. Thus, it appears that the primary reason for having parallel sentencing provisions for second-degree murder and kidnapping is to deal with situations where the victim has been killed, but the kidnapping serves to obscure the circumstances surrounding the killing. I would agree, however, that the legislature’s concerns in establishing Draconian penalties for kidnapping were not absolutely limited to situations of obscured murder. Kidnappings for substantial ransom or terrorist kidnappings to obtain political or social advantage may appear extremely attractive to potential kidnappers. By providing for sentences in the twenty- to ninety-nine-year range, the legislature might have hoped to discourage this kind of highly profitable activity. Furthermore, such sentences might also be appropriate for assailants who literally “enslave” their victims and hold them incommunicado for a substantial period of time. See, e.g., Morrell v. State, 575 P.2d 1200 (Alaska 1978).

I would therefore suggest limiting composite sentences in excess of twenty years to cases involving obscured murder, kidnapping for ransom, terrorist kidnapping for political or social advantage, or enslavement.4

*473What is an appropriate range for sentences in those cases where the defendant kidnaps the victim in furtherance of some other offense, yet significantly confines the movement of the victim beyond the time necessary to commit the ancillary offense? Likewise, what is the appropriate range when the kidnapping results in serious injury to the victim? At the outset, it is clear that kidnapping, rape, and first-degree [physical] assault, although committed as part of a single continuous transaction, constitute three distinct offenses, each of which violates separate societal interests for which it is appropriate to impose distinct sentences, even though the kidnapping is only a prelude to the commission of the other offenses. See State v. Occhipinti ex rel. Levshakoff, 562 P.2d 348, 351 (Alaska 1977). Having established the propriety of imposing separate sentences, however, we are still left with the question of what is an appropriate range of sentences for the entire conduct, i.e., an appropriate composite sentence. The authority to impose consecutive sentences does not answer this question. See, e.g., Jones v. State, 744 P.2d 410, 414-15 (Alaska App.1987) (Singleton, J., concurring).

It seems to me that the most appropriate approach in such cases is to view the kidnapping as an aggravator of the ancillary offense. See, e.g., Barry v. State, 675 P.2d 1292, 1297 (Alaska App.1984). In cases of kidnapping for purposes of rape, the kidnapping would serve to aggravate the rape, and justify a sentence for a first felony offender in the ten- to twenty-year range, similar to the range which we recognized for aggravated instances of rape in State v. Andrews, 707 P.2d 900, 913-17 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986). Where the kidnapping involves a physical assault and results in serious physical injury, then the kidnapping would aggravate the physical assault and an unsuspended sentence of up to ten years would be appropriate for a first felony offender. Pruett, 742 P.2d at 264. Longer sentences would be reserved for those with prior felony convictions. In eases such as this, where the assailant is a first felony offender and the victim suffers serious physical injury, i.e., permanent disfigurement and a sexual assault, a sentence in the range of ten to twenty years would not be clearly mistaken.5

In testing this approach against the reported cases it is important to bear one thing in mind. Garrison is a first felony offender. Generally, substantial sentences in excess of ten years are reserved for recidivists. Graybill, 695 P.2d at 731. Those convicted of offenses involving both rape and kidnapping who received sentences in excess of the ten- to fifteen-year benchmark for aggravated rape have usually been felony recidivists. Hintz v. State, 627 P.2d 207 (Alaska 1981); Post v. State, 580 P.2d 304 (Alaska 1978); Andrejko v. State, 695 P.2d 246 (Alaska App.1985); Patterson v. State, 689 P.2d 146 (Alaska App.1984); Baker v. State, 655 P.2d 1324 (Alaska App.1983); Tookak v. State, 648 P.2d 1018 (Alaska App.1982).

Four cases involving longer sentences for first felony offenders are distinguishable. In Nylund v. State, 716 P.2d 387 (Alaska App.1986), the defendant’s kidnapping of a seven-year-old girl was frustrated only when bystanders intervened. The trial judge sentenced Nylund to fifty years with five suspended. Id. at 390. We reduced the sentence to not exceed thirty years. Id. at 391. The thirty-year sentence was justified because Nylund’s case involved a very young girl. In determining Nylund’s sentence, we relied in part on Hintz, in which the defendant kidnapped a woman, raped her at gunpoint, and left her with little clothing in minus thirteen-degree weather. Hintz, 627 P.2d at 211. Thus, the court may have feared Nylund would *474have killed his victim or retained her for a substantial period as in Morrell.

In Barry, the defendant received concurrent sentences of twenty years for marginal kidnapping and twenty years with five suspended for sexual assault. Although Barry did not appeal his kidnapping sentence, this court held that a total sentence of twenty years was not clearly mistaken. Barry, 675 P.2d at 1297.

In Davis v. State, 635 P.2d 481 (Alaska App.1981), this court approved concurrent sentences of twenty years kidnapping and fifteen years for rape. Davis, however, had developed a pattern of seeking out vulnerable women for attack. Fear that Davis was a potential serial rapist no doubt explains his severe sentence. Id. at 487-88. This is made clear when Davis is compared with Goolsby v. State, 739 P.2d 788 (Alaska App.1987). Goolsby, a first felony offender, was sentenced to thirty-seven years with twelve suspended for multiple sexual assaults. He was not convicted of kidnapping. Id. at 789-90. Nevertheless, his sentence greatly exceeded sentences that had previously been approved for aggravated sexual assaults. It would appear that Goolsby’s Draconian sentence was justified by the trial court’s implicit belief, shared by the appellate court, that Goolsby was a serial rapist. Id. at 789-90. When comparing Davis and Goolsby, it is apparent that Davis’ potential for serial rape, not the kidnapping, explains Davis’ severe sentence.

Finally, in Wilson v. State, 670 P.2d 1149 (Alaska App.1983), the defendant received a composite thirty-year sentence for kidnapping and sexual assault. Wilson and a confederate not only sexually assaulted and beat their victim, they also abandoned her, leaving her naked and unconscious in thirty-degree temperature. Id. at 1154-55. 6

CONCLUSION

A composite sentence of twelve years is within a permissible range of sentences for Garrison’s offenses. I would not disapprove a sentence of up to twenty years, but the sentence imposed is not clearly mistaken.7

. In the eighteen years since the supreme court announced the birth of sentence review in State v. Chaney, 477 P.2d 441, 441-44 (Alaska 1970), the appellate courts of Alaska have never found a sentence in excess of ten years too lenient and have only once found a sentence too lenient because it was less than ten years. State v. Krieger, 731 P.2d 592, 596-97 (Alaska App.1987) (sentence of less than ten years clearly mistaken for second-degree murder when defendant motivated by jealousy broke into his wife’s paramour’s house and executed him when he found them engaged in intercourse). Cf. Martin v. State, 664 P.2d 612, 620 (Alaska App.1983) (twenty-year minimum term for first-degree murder not unconstitutional even though defendant motivated by jealousy executed her lover).

If we ignore Krieger, a murder case, the appellate courts of Alaska have never disapproved a sentence of five years or more of incarceration as too lenient for a crime of violence. Only in cases imposing a sentence of five years or less has the sentence been disapproved as too lenient. See State v. Wassilie, 578 P.2d 971, 974 (Alaska 1978) (disapproving total sentence of eighteen months for assault with a dangerous weapon, forcible rape, and assault with intent to commit rape); State v. Abraham, 566 P.2d 267, 271 (Alaska 1977) (defendant convicted of manslaughter for beating his wife to death, held: five years with four years suspended too lenient); State v. Lancaster, 550 P.2d 1257, 1260 (Alaska 1976) (two-year sentence too lenient for two counts of forcible rape of fifteen-year-old niece occurring on successive days); State v. Armantrout, 483 P.2d 696, 698 (Alaska 1971) (three-year suspended sentence for assault resulting in serious physical injuries too lenient); Chaney, 477 P.2d at 477 (concurrent one-year terms for two counts of forcible rape and one count of robbery too lenient); State v. Brinkley, 681 P.2d 351, 358 (Alaska App.1984) (sentence of less than three years too lenient for typical rape under former law); State v. Woods, 680 P.2d 1195, 1197-98 (Alaska App.1984) (sentence of less than eighteen months too lenient for multiple instances of sexual abuse not constituting rape under former law); State v. Lamebull, 653 P.2d 1060, 1062 (Alaska App.1982) (defendant convicted of vehicular manslaughter; court held five-year suspended imposition of sentence too lenient and one year to serve minimum permitted under the facts); State v. Jensen, 650 P.2d 422, 425 (Alaska App.1982) (straight probation with no incarceration too lenient for robbery and attempted rape); State v. Lupro, 630 P.2d 18, 20-21 (Alaska App.1981) (defendant was convicted of negligent homicide and failure to render assistance; initial sentence of five years with four years suspended reduced to straight probation was found too lenient, minimum sentence permissible was one year to serve). Cf. State v. Afcan, 583 P.2d 849, 851 (Alaska 1978) (concurrent sentences of five years for knife assaults on two people neither excessive nor too lenient); State v. Doe, 647 P.2d 1107, 1108-11 (Alaska App.1982) (sentence of less than ninety days too lenient where mother passively aided her husband in a protracted course of sexual abuse of their children); State v. Ahwinona, 635 P.2d 488, 490 (Alaska App.1981) (sentence of less than four years’ incarceration too lenient where defendant, with prior manslaughter conviction, assaulted two people with a knife and inflicted permanent disabling injuries on one of them).

These cases, when viewed together, suggest that sentences of straight probation are too lenient for serious crimes of violence, but that a sentence of five years or more would not be too lenient for even the most serious crimes of violence short of murder. Naturally, presumptive sentences will alter this analysis and may, in cases such as this one, require a sentence substantially in excess of five years’ imprisonment. It is important to stress, however, that it is presumptive sentencing and not the Chaney criteria which would appear to require sentences in excess of five years for first felony offenders convicted of violent crimes less than murder.

. The McClain court cautioned:

The type of analysis involved in both of these formulations should not be confused with the abuse of discretion test. In the abuse of discretion test the reviewing court will sustain the lower court’s sentence merely if some of the evidence supports the sentencing court's determination. An independent examination of the entire record is not a part of this test. Because of the limited review inherent in the abuse of discretion test this court in [a prior decision] rejected its application to sentence appeals.

519 P.2d at 813.

The "clearly mistaken” test approved in McClain would appear to be identical to the "clearly erroneous” test adopted in Alaska Food, Inc. v. American Mfrs. Mut. Ins. Co., 482 P.2d 842, 848 (Alaska 1971). This test applies generally to review of trial court findings in criminal cases, except on the ultimate issue of guilt or innocence. Esmailka v. State, 740 P.2d 466, 470 (Alaska App.1987). What I understand the supreme court to be saying, in context, when it contrasts the clearly msitaken test with the abuse of discretion test, is that a sentence which viewed in isolation might be reasonable will nevertheless be rejected on sentence review if it is outside an appropriate range of sentences imposed on similar individuals committing similar crimes.

. There is a certain built-in unfairness in our recognition of a five-year sentencing range, i.e., ten to fifteen years' incarceration for aggravated offenses for defendants whose conduct and backgrounds are virtually indistinguishable. As we previously noted:

Each year in prison is a very long time for the person who must serve it and [sentence offenders] could well argue that, under a system that seeks to insure uniformity and avoid disparity in sentencing, it is not fair that [some] serve five more years than [others].

Covington, 747 P.2d at 553-54. The clearly mistaken test when properly applied by a reviewing court still leaves substantial disparity among sentences imposed on those similarly situated. Id. at 554. See also Langton v. State, 662 P.2d 954, 962-63 (Alaska App.1983). If I read Covington and Langton correctly, what we said in those cases is that any sentence imposed within a proper range is an equivalent sentence for purposes of sentence review, i.e., that a ten-year sentence, a twelve-year sentence, and a fifteen-year sentence imposed on similarly situated sexual offenders are equivalent sentences immune from sentencing review because they fall within “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.

. The assumptions in this concurring opinion regarding the legislature’s motivation for making kidnapping an unclassified offense find support in the commentary to Model Penal Code Part II, Art. 212 (1980). I recognize that the Model Penal Code and the tentative draft seek to address the problems noted in this concurrence by subdividing kidnapping into a number of related offenses of greater or lesser seriousness. The Alaska legislature did not follow this approach, apparently preferring to allow the courts to establish appropriate sentencing ranges for the various kinds of conduct that satisfy the statutory definition.

. Chief Judge Bryner is probably correct that the reported cases suggest a range of fifteen to twenty-five years for offenses involving both kidnap and rape. These cases, however, distort the appropriate range for a number of reasons: (1) they all involve cases in which the defendant appealed a sentence contending that it was excessive. In none of the reported cases is there a suggestion that a substantially shorter sentence would have been too lenient, (2) most involve recidivists, and (3) where first offenders are involved, there is either conduct bordering on an attempted murder, a substantial risk of "enslavement,” or a serial rape.

. The state relies on Wilson and two other cases in which sentences in excess of twelve years were approved for sexual assaults resulting in serious physical injury. The latter two cases did not involve kidnapping. Helmer v. State, 616 P.2d 884 (Alaska 1980) (twenty-five year composite sentence approved for sexual assault and attempted murder); Hasslen v. State, 667 P.2d 732 (Alaska App.1983) (twenty-five year composite sentence approved for first-degree assault and rape where defendant shot at victim after breaking into her home and sexually assaulting her). In Helmer, Wilson, and Hasslen, the defendants attempted to kill their victims to prevent identification after completing the sexual assaults. Here, defendant threatened to kill the victim, and he seriously injured her prior to the assault, but he never attempted to kill her, and she escaped when the sexual assault was completed.

. Kidnapping involving serious physical injury or sexual assault is an unclassified felony with a minimum five-year sentence and a maximum sentence of ninety-nine years. AS 12.55.125(b). When the victim is released unharmed, the offense is a class A felony. AS 11.41.300(d). The maximum penalty would then be twenty years. AS 12.55.175(c). In so providing, the revised code follows Article 212 of the Model Penal Code. The obvious purpose was to encourage kidnappers to release their victims uninjured. It would be a mistake, I believe, to infer that the legislature actually intended a lesser-included offense relationship between the unclassified felony and the class A felony because of the substantial overlap in penalties. Instead, the legislature appears to have prescribed a five-year presumptive term for kidnapping when the victim suffers no harm, AS 12.55.125(c)(1), and a five-year minimum term when the victim suffers minimal harm. See, e.g., AS 12.55.125(b). The treatment in the text, which reserves penalties in excess of twenty years for (1) felony recidivists, and (2) nonrecidivists who (a) kill their victims, (b) hold them for ransom, or (c) enslave them, treats the kidnapping as aggravating the ancillary offense and best reconciles all of these statutes with the applicable case law.