Garrison v. State

BRYNER, Chief Judge,

concurring in part and dissenting in part.

I join in the majority opinion affirming Garrison’s conviction but dissent from its decision to affirm his sentence.

Garrison was convicted of three separate crimes: kidnapping, sexual assault in the first degree, and first-degree assault. Kidnapping and sexual assault in the first de*475gree are both unclassified felonies; first-degree assault is a class A felony. Each of the three separate crimes that Garrison committed was particularly serious in its own right, apart from its relationship to his other offenses. In totality, his conduct is even more aggravated than the sum of its component parts.

Por committing these offenses, Garrison received a total term of twelve years’ imprisonment. This sentence falls far short of adequately reflecting the seriousness of Garrison’s individual crimes and the overall seriousness of his collective criminal misconduct.

According to the evidence at trial, Garrison forcibly abducted a young female pedestrian, C.D., who was a total stranger. He drove his victim across town at knife-point. After stabbing and cutting C.D. repeatedly, Garrison proceeded to rape her. C.D. managed to escape further harm only fortuitously, when Garrison’s truck became stuck in a ditch and was reported to the police. Garrison inflicted serious physical injuries on C.D.; those injuries were potentially fatal and resulted in permanent disfigurement. Garrison was under the influence of narcotics at the time of the offense. While nominally a first offender, Garrison had been discharged from the military for drug abuse and had repeatedly failed at prior efforts to address his drug problem. In the sentencing court’s own estimation, Garrison’s prospects for rehabilitation were not favorable.

The total term of twelve years imposed by the sentencing court in this case exceeds by only two years the ten-year presumptive term that was applicable to Garrison by virtue of his use of a knife in committing the sexual assault on C.D. See AS 12.55.-125(i)(2). Garrison was separately subject to a seven-year presumptive term for first-degree assault. See AS 12.55.125(c)(2). Finally, the prescribed punishment for Garrison’s most serious offense, kidnapping, was a minimum of five years, and a maximum of ninety-nine years. See AS 12.55.-125(b).

Perhaps the most useful and direct approach to evaluating the appropriateness of an aggregate term of twelve years for all three of these offenses would be to focus on Garrison’s most serious offense, kidnapping, and to view his other crimes as aggravating that offense. See, e.g., State v. Andrews, 707 P.2d 900, 912-13 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986).

The penalty provisions governing the unclassified felony of kidnapping rank it second in seriousness only to first-degree murder. The penalty provisions are identical to those that apply to second-degree murder. Second-degree murder and kidnapping were therefore deemed by the legislature to be equivalent in seriousness. By enacting a minimum term of five years for kidnapping, the legislature indicated that a five-year sentence is appropriate for the offense under the most mitigated circumstances conceivable. A typical first offender who commits a typical kidnapping should thus presumably be subject to a significantly greater sentence. For the equivalent crime of second-degree murder, this court has specified a first-offense benchmark term of twenty to thirty years’ imprisonment. See Page v. State, 657 P.2d 850, 855 (Alaska App.1983).

Despite the equivalent ranking of second-degree murder and kidnapping, it would be unrealistic to expect that a typical first offender convicted of kidnapping should receive a term equivalent to the benchmark sentence for second-degree murder. The statutes prohibiting kidnapping and second-degree murder both seek to protect society against acts of serious physical violence. By definition, however, second-degree murder involves situations where the primary harm against which the law seeks to protect has already occurred, that is, the defendant has caused another person’s death. All second-degree murderers are similarly situated in this regard and deserve similar treatment. Thus, if justification is to be found for the disparate sentencing of second-degree murderers, it must be sought in characteristics of the individual offender and in the distinguishing features of each offender’s conduct; it will not be found in the disparity of actual harm resulting from the commission of different murders.

*476In contrast, a broad range of actual harm to the victim may result in cases of kidnapping. At the upper range of the spectrum, of course, a kidnapping may result in the death of the victim; in such eases, the offender would be subject to separate conviction and punishment for murder. At the lower range of the spectrum, a kidnapping may result in virtually no actual physical harm. In recognition of this, the legislature has enacted an affirmative defense reducing kidnapping from an unclassified felony to a class A felony when the defendant voluntarily releases the victim unharmed. See AS 11.41.300(d).

In any given case of kidnapping, the nature and extent of the harm actually inflicted on the victim is certainly a legitimate and vital consideration reflecting on the overall seriousness of the offense and, ultimately, on the appropriate sentence to be imposed. Because of the wide variety of actual harm that may result from a kidnapping, it is to be expected that, in comparison to second-degree murder, a relatively wide variety of first-offense sentences may be appropriate in kidnapping cases. By the same token, because the typical case of kidnapping involves relatively little physical harm to the victim, the appropriate term for a typical first offender should fall considerably lower than the twenty- to thirty-year benchmark term for a first offender convicted of the equally serious offense of second-degree murder.

Where the commission of a kidnapping actually results in the infliction of grave injuries to the victim, however, I can see no conceivable justification for ignoring the benchmark sentence that applies to the equivalently classified offense of second-degree murder. As with cases of second-degree murder, first-offense kidnapping sentences significantly lower than the benchmark sentence would be justified where a defendant’s conduct—although resulting in actual harm—was mitigated, or where the defendant’s background - indicated particularly good prospects for rehabilitation. On the other hand, it would be hard to find a plausible justification for imposing a mitigated sentence where the kidnapping resulted in serious physical injury to the victim, where the defendant’s conduct in committing the offense was more serious than the norm for the offense, and where the defendant’s prospects for rehabilitation were dimmer than those of a typical first offender.

This is precisely the situation in Garrison’s case. By any conceivable standard, Garrison committed a particularly aggravated kidnapping. Garrison’s conduct in committing the kidnapping was hardly de min-imus; although he did not confine his victim for a prolonged length of time, Garrison forcibly abducted C.D. and transported her at knifepoint to a secluded area across town for purposes of committing a sexual assault. In terms of the statutory definition of the offense, this conduct amounts to far more than a technical kidnapping. The actual harm caused by Garrison’s conduct goes far beyond the harm inflicted in a typical kidnapping case. Not only did Garrison rape his victim at knifepoint, but he also stabbed and cut her, repeatedly and apparently gratuitously, inflicting injuries that could well have taken C.D.’s life. Moreover, the fortuitous circumstances of C.D.’s rescue suggest that she was in peril of suffering even more serious harm. Finally, by the sentencing court’s own estimate, Garrison’s prospects for rehabilitation appear to be poor—certainly far worse than the typical first offender.

Given the obviously aggravated nature of Garrison’s conduct, the extent of harm to the victim, and his poor rehabilitative potential, none of the circumstances that might otherwise justify mitigated treatment in a first-offense kidnapping case are present here. At the very least, Garrison should have received a term within the twenty- to thirty-year benchmark established in Page.

This conclusion finds direct support in Davis v. State, 635 P.2d 481 (Alaska App.1981). Davis involved a youthful first offender with an exemplary record who abducted and raped a seventeen-year-old girl. In approving a twenty-year sentence of imprisonment in that case, this court relied in part on evidence indicating that Davis had been involved in two similar incidents. Al*477though there is no comparable evidence to indicate that Garrison has previously engaged in similar misconduct, the uniquely aggravated nature of Garrison’s conduct, the injuries he inflicted on C.D., and his unpromising prognosis for rehabilitation more than offset the evidence of prior misconduct in Davis. Unlike Davis,' Garrison does not have an exemplary background. His military record is poor, he has a long-term problem with narcotics and alcohol addiction, and he has repeatedly failed at rehabilitation. Davis, moreover, did not use or threaten his victim with a dangerous weapon, and he did not inflict serious physical injury in addition to the sexual assault.

It makes no sense at all to justify the disparity between Davis’ twenty-year term and Garrison’s twelve-year term by painting a minimalistic picture of this court’s sentence review authority. The majority opinion emphasizes that “[s]entence review ... is primarily a safety valve; it is an opportunity to correct sentences which deviate too far from the norm.” Ante at 469. While this observation is undoubtedly correct as far as it goes—that is, in pointing out that one of the basic objectives of sentence review is uniformity—it plainly begs the crucial question, which is how to determine precisely when a disputed sentence deviates “to far from the norm.”

The majority’s emphasis on the “wide range of sentences which are within the trial court’s discretion” and on deference to “the trial judge’s superior opportunity to evaluate the offender and the offense,” id., implies a powerlessness to act except in the most extreme instances of obvious disparity. This view of our sentence review authority, however, does substantial disservice to the relatively broad standard that was adopted by the supreme court in McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974), and that has been consistently applied since McClain was decided.

Under McClain, the applicable standard on appeal is whether a sentence is clearly mistaken. McClain makes it clear that blind deference to the sentencing court’s “superior opportunity to evaluate the offender and the offense” is neither required nor desirable. Rather, under McClain, this court has the affirmative obligation to conduct an independent review of the sentencing record in each case; the evaluation of whether the sentence is clearly mistaken must be based on this independent review.

Certainly, as the majority opinion in this case correctly points out, sentencing is an individualized process. Again, however, this observation begs the issue: what individualized considerations are there in the present case that could conceivably justify the eight-year sentencing disparity between Davis and Garrison? There are none. In virtually every significant respect—the rehabilitative potential of the offender, the seriousness of the conduct, and the seriousness of the harm actually inflicted upon the victim—the individual characteristics of Garrison’s case are far worse than those of Davis’ case.

The majority opinion also attempts to justify the twelve-year term in this case by reference to the ABA Standards, which counsel against the imposition of sentences in excess of ten years accept in unusual cases. See III Standards for Criminal Justice § 18-2.1 and commentary at 52 (Approved Draft 1979 & Supp.1982). Reliance on this standard as a justification for Garrison’s inordinately lenient term is mistaken.

Neither this court nor the Alaska Supreme Court has ever applied the ABA ten-year benchmark to cases involving the most serious unclassified felonies—those punishable by a ninety-nine-year maximum term of imprisonment. To the contrary, we have expressly noted that reliance on the ten-year benchmark is appropriate “in all but the most serious categories of cases.” Skrepich v. State, 740 P.2d 950, 955-56 (Alaska App.1987).1

*478My independent review of the entire sentencing record in this case convinces me that an aggregate term of twelve years’ imprisonment for the three exceptionally serious crimes that Garrison committed is too lenient and cannot be justified. The record in this case does not support the need to give overriding emphasis to the sentencing goal of rehabilitation. Indeed, the sentencing court did not seek to do so. Absent a need to prioritize rehabilitation, the imposition of a twelve-year term in this case gives inadequate emphasis to the important sentencing goals of deterrence and community condemnation. I would find that, at a minimum, a sentence within the lower ranges of the Page benchmark should have been imposed.

. The inapplicability of the ABA ten-year standard in the context of the present case is underscored by the fact that the presumptive term for Garrison’s sexual assault conviction alone is ten years’ imprisonment. This term is meant to apply to a typical first offense of first-degree sexual assault committed with'a dangerous instrument but involving no additional crimes. The majority in the present case makes much of the fact that the sentencing court, in imposing *478Garrison’s twelve-year term, restricted his eligibility for parole. Yet Garrison's ten-year presumptive term for sexual assault in the first degree would necessarily preclude eligibility for early release.