State v. Bumpus

MATTHEWS, Justice,

with whom RABINO WITZ, Chief Justice, joins, dissenting.

I agree with the opinion of the court of appeals, and thus would either dismiss the petition in this case as improvidently granted, or affirm.

The decision of the court of appeals reaches two conclusions: first, the aggregate sentence of 23 years without possibility of parole is excessive; second, on resen-tencing, an aggregate sentence of not more than 15 years should be imposed. Today’s majority opinion does not seem to disagree with the court of appeals’ conclusion that the 23-year sentence is excessive.1 It does, however, disagree with the court of appeals’ directive that Bumpus’ sentence should not exceed 15 years.

If I understand the majority’s reasoning correctly, it reaches this conclusion for two reasons, neither of which indicates that a 15-year sentence on remand would necessarily be inappropriate. The first is because, in the majority’s view, the court of appeals has not adequately articulated its reasons for settling on 15 years, nor has it explained “why any sentence over fifteen years would also be excessive.” Maj. Op. 304. Second, the majority believes that no sentence should have been passed in this case without a psychological evaluation of Bumpus, and that meaningful sentence review without such an evaluation is impossible.

The majority’s point concerning a psychological evaluation is reasonably arguable. At worst, psychological testing may cause needless delay and expense; at best it may bring out new information which is relevant in sentencing Bumpus. I would not reverse and remand for this reason, how*306ever, because at no point in these proceedings has either party requested a psychological evaluation, nor is there anything in the record which suggests a need for an evaluation.

The majority’s point that the court of appeals did not adequately explain its reasons for concluding that Bumpus’ sentence should not exceed 15 years is not reasonable, in my opinion. The methodology used by the court of appeals in arriving at the 15-year maximum was to compare similar, although inevitably not identical, cases. The court found Good v. State, 590 P.2d 420 (Alaska 1979), and Price v. State, 565 P.2d 858 (Alaska 1977) (both 20-year sentences for significantly more serious conduct), to set an upper limit, while Adams v. State, 521 P.2d 516 (Alaska 1974) (11 years), Smothers v. State, 579 P.2d 1062 (Alaska 1978) (12 years), and Shagloak v. State, 582 P.2d 1034 (Alaska 1978) (15 years), suggested an appropriate range. The court also considered the 10-year sentence of Heacock, a member of the same burglary gang as Bumpus, finding Heac-ock’s case to be in some, but not all respects, a more aggravated case than Bumpus’. 776 P.2d at 337. The court decided based on the sentences in these and a number of other burglary cases where lesser but significant sentences were given, id. at 338 n. 2, that a 15-year sentence for Bum-pus was the maximum which would be appropriate.2

Before the court of appeals began to function in 1980, it was the task of this court to review sentences for excessiveness. There are numerous cases where we found a sentence to be excessive and imposed a maximum sentence on remand. In these cases, our explanation for the maximum we set was typically quite brief— usually no more detailed than the explanation given by the court of appeals in this case and often much less detailed. In no case did we ever explain what the majority wants the court of appeals to explain in this case, namely why any sentence over the maximum sentence on remand would be excessive.3

A case in which we used methodology which seems identical to that employed by the court of appeals in the present case is Helmer v. State, 616 P.2d 884 (Alaska 1980). Helmer was given a 30-year composite sentence for rape, assault with intent to kill, and burglary. We found the sentence to be excessive and remanded for resentencing, with a proviso that Helmer’s sentence should not exceed 25 years. Our discussion involved a review of Helmer’s history and a comparison of his crime to other cases. Id. at 886 & n. 6.

It is apparent that the majority in today’s opinion is demanding a degree of articulation beyond that which is reflected in most *307of the cases where we have found a sentence to be excessive and remanded for the imposition of a new sentence not to exceed a maximum term. We are, in other words, asking the court of appeals to do more than we have done.

I do not think that a higher level of articulation is practical or useful. Prior cases give one an idea of appropriate sentencing ranges. A court may say that a case fits in one range and not in another because of similarities with the former and dissimilarities with the latter. Unless one is prepared to go further and attempt to quantify various aggravating factors, that is about all that can be done. I do not read the majority’s opinion as calling for a quantification of aggravating factors, indeed, it seems to condemn the practice: “it is no longer appropriate for courts to rigidly define the length of sentence that can be justified by any particular criterion....” Maj.Op. 302.

For the above reasons, I dissent.

. "Based on these shortcomings, the court of appeals had considerable basis for concluding, as it did, that the record before it did not support the sentence imposed by Judge Ripley.” Maj.Op. 304. "[W]e are skeptical here that Bumpus deserves twenty-three years." Maj.Op. 304.

. The court might also have added that the prosecutor in Bumpus' case recommended an aggregate sentence in the range of 10 to 15 years with 15 years being "just about right.”

. An example is Preston v. State, 615 P.2d 594 (Alaska 1980). Preston was sentenced to five years for burglary in a dwelling, her second felony. We concluded that she should not receive more than three years. While we gave reasons why the five-year sentence was excessive, we did not attempt to justify the three-year maximum or to say why, for example, a four-year sentence would also have been excessive. All we said was: “In our opinion, Preston should not be sentenced to imprisonment for more than three years-” Id. at 604.

An almost equally brief discussion of the maximum on remand appears in Kanipe v. State, 620 P.2d 678, 680 (Alaska 1980), where a four-year sentence for burglary was reduced to not more than two years. In Fields v. State, 629 P.2d 46, 53 (Alaska 1981), a sentence of five years for a securities fraud conviction was found excessive and reduced to three years to serve plus a fine. Our total discussion on the reason for the maximum sentence was as follows: "In our opinion, the maximum sentence should not exceed a total of six years, with three years to be suspended and the defendant to be on probation during the suspended period.” Likewise, in Huff v. State, 598 P.2d 928, 936 (Alaska 1979), the discussion of the reason for a three-year maximum sentence on remand was very general: “We feel that a prison sentence of three years to serve is sufficient sanction under the facts of this case to properly serve the Chaney goals." See also Hintz v. State, 627 P.2d 207, 211 (Alaska 1981) (with no reasons given for the sentence on remand, a sentence of life plus 20 years was reduced to a sentence of 30 years); Amidon v. State, 565 P.2d 1248, 1263 n. 47 (Alaska 1977) (only discussion of maximum sentence on remand was a footnote to another case).