Juneby v. State, 5606
| Decision Date | 11 March 1982 |
| Docket Number | No. 5606,5606 |
| Citation | 641 P.2d 823 |
| Parties | Ivan Steven JUNEBY, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Jane F. Kauvar, Asst. Public Defender, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for appellant.
Harry L. Davis, Dist. Atty., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Before BRYNER, C. J., SINGLETON, J., and MOORE, Superior Court Judge. *
In this sentence appeal, we must consider the presumptive sentencing provisions of the Alaska Revised Criminal Code. Specifically, we are called upon to interpret and apply AS 12.55.155, which permits presumptive sentences fixed by AS 12.55.125 to be increased by the sentencing court upon a showing of aggravating factors and decreased upon a showing of mitigating factors.
On April 30, 1980, Ivan Juneby knocked on the door of a Fairbanks residence. The door was opened by a young woman, V.W., the only person in the house. V.W. allowed Juneby to enter in order to use the telephone. Once inside, however, Juneby attacked V.W. After beating and choking V.W. into submission, Juneby proceeded to rape her. When an acquaintance of V.W. knocked on her door, Juneby abruptly terminated his assault and fled. He was arrested a short time later.
Juneby subsequently entered pleas of nolo contendere to charges of burglary in the first degree, a class B felony, 1 and sexual assault in the first degree, a class A felony. 2 The maximum term provided for the burglary was ten years; for the sexual assault, the maximum was twenty years. See AS 12.55.125(d) and (c), respectively. Sentencing was held in Fairbanks on September 23, 1980, before Superior Court Judge Gerald J. Van Hoomissen. Juneby received a sentence of eight years' imprisonment for the burglary and twenty years' imprisonment for the sexual assault; the two sentences were imposed concurrently. He now appeals only the twenty-year sentence for sexual assault, claiming that the court gave undue weight to aggravating circumstances and that his sentence is excessive.
At his sentencing, it was undisputed that Juneby had previously been convicted of grand larceny, a felony. Accordingly, upon his conviction of burglary and sexual assault, Juneby became subject to presumptive sentencing as a second felony offender under the provisions of the Alaska Revised Criminal Code. The presumptive sentencing provisions specifically applicable to Juneby are contained in AS 12.55.125(c)(2) and (d)(1); these provisions state, in pertinent part:
(c) A defendant convicted of a class A felony may be sentenced to a definite term of imprisonment of not more than 20 years, and shall be sentenced to the following presumptive terms ....
....
(2) if the offense is a second felony conviction, 10 years;
....
(d) A defendant convicted of a class B felony may be sentenced to a definite term of imprisonment of not more than 10 years, and shall be sentenced to the following presumptive terms ....
(1) if the offense is a second felony conviction, four years ....
Accordingly, Juneby was subject to presumptive terms of ten years for his sexual assault and four years for his burglary. 3 In the absence of extraordinary circumstances, 4 these presumptive sentences were mandatory, and the sentencing court was bound to impose them, subject only to adjustment for aggravating or mitigating factors in accordance with AS 12.55.155. 5
In this appeal, Juneby challenges the sentencing court's interpretation and application of the provisions of AS 12.55.155 permitting adjustment of presumptive sentences upon proof of aggravating or mitigating factors. He further contends that Judge Van Hoomissen incorrectly concluded that the aggravating factors established in his case justified increasing his sentence for first degree sexual assault from the ten-year presumptive sentence prescribed under AS 12.55.125(c)(2) to the maximum twenty-year term for the offense.
Before we attempt to consider the merits of Juneby's claims, we must address two threshold matters. First, we believe that discussion of the basic structure and purposes of Alaska's presumptive sentencing scheme, with specific reference to the legislature's commentary on the code's sentencing provisions, will be helpful in providing a background for review of the sentencing court's decision. Second, we must consider the manner in which the revised code's presumptive sentencing provisions alter the previously existing scope of review in sentence appeals.
In 1977, when the Alaska Legislature began its consideration of a comprehensive revision of the former criminal code, there was a strong perception that the sentencing structure of Alaska's criminal statutes lacked coherence. See B. Stern, The Proposed Alaska Revised Criminal Code, 7 UCLA-Alaska L.Rev. 1, 10-11 (1977). Furthermore, based on the results of sentencing studies in Alaska, 6 the legislature was concerned with eliminating disparity in the sentencing of similarly situated offenders and making criminal sentencing a predictable, internally consistent process. See Commentary on the Alaska Revised Criminal Code, Senate Journal Supplement No. 47 at 148, 1978 Senate Journal 1399. 7
Decisions of the Alaska Supreme Court in sentence appeals had given little significance to uniformity as a goal of sentencing or of appellate review of sentences. 8 The markedly different approach to sentencing taken by the Alaska Legislature in enacting the Alaska Revised Criminal Code is made explicit in the first section of the new code's chapter dealing with sentencing. AS 12.55.005 provides, in relevant part:
Declaration Of Purpose. The purpose of this chapter is to provide the means for determining the appropriate sentence to be imposed upon conviction of an offense. The legislature finds that the elimination of unjustified disparity in sentences and the attainment of reasonable uniformity in sentences can best be achieved through a sentencing framework fixed by statute as provided in this chapter. (Emphasis added.)
The presumptive sentencing provisions of the Revised Criminal Code, contained in AS 12.55.125 and 12.55.155, thus reflect the legislature's intent to assure predictability and uniformity in sentencing by the use of fixed and relatively inflexible sentences, statutorily prescribed, for persons convicted of second or subsequent felony offenses.
Under the provisions of AS 12.55.125, courts sentencing individuals convicted of their first felony offense are not expressly limited in the sentence that can be imposed; 9 thus, much of the traditionally broad discretion to decide what kind of a sentence to impose in each case is retained. 10 For second and subsequent felony offenders, however, the legislature has evidenced a strong resolution to restrict judicial discretion 11 and to assure that, as a general rule, statutorily mandated sentences would be imposed. AS 12.55.125(c)(2), (c)(3), (d)(1), (d)(2), (e)(1), and (e)(2), establish presumptive sentences to be imposed upon persons convicted of class A B, and C felonies when their convictions are for second or subsequent felonies. 12 Under the provisions of AS 12.55.125(g), these presumptive terms may not be suspended or reduced, nor is an offender who is subject to presumptive sentencing eligible to receive a suspended imposition of sentence.
Only two methods are provided for a sentencing judge to deviate from a presumptive sentence established under AS 12.55.125. One occurs when the judge concludes that extraordinary circumstances exist, so that manifest injustice would result if normal presumptive sentencing procedures, as set forth in AS 12.55.125 and 12.55.155, were followed. Upon reaching such a conclusion, the judge must refer the case for sentencing to a specially constituted three-judge panel, which is empowered to impose a sentence without regard to the presumptive terms provided for under AS 12.55.125. See AS 12.55.165 and 12.55.175. The second alternative, provided for in AS 12.55.155, allows a sentencing judge to adjust a presumptive term upward or downward based on a finding of aggravating or mitigating factors. Under AS 12.55.155(c), eighteen aggravating factors are enumerated; thirteen mitigating factors are listed under AS 12.55.155(d). 13 Only the factors specifically stated may be considered by the court in determining whether a presumptive sentence should be adjusted. 14
It is manifest that the legislature did not intend aggravating and mitigating circumstances to be lightly found. This is reflected in AS 12.55.155(f), which states, in pertinent part: "Factors in aggravation and factors in mitigation must be established by clear and convincing evidence ...." The requirement of proof by clear and convincing evidence is a strong indication of the legislature's intent to prohibit frequent and substantial departure by sentencing judges from the presumptive sentences that it statutorily prescribed. The legislature emphasized this intent in commenting upon the clear and convincing evidence requirement of AS 12.55.155(f):
Factors in aggravation or mitigation must be proven by 'clear and convincing' evidence so that deviation from the presumptive sentence does not occur routinely.
Commentary on the Alaska Revised Criminal Code, supra at 161.
The presumptive terms set out in AS 12.55.125 were thus intended as appropriate for imposition in most cases, without significant upward or downward adjustment. The commentary to AS 12.55.125 lends further support to this conclusion:
A presumptive sentence is a legislative determination of the term of imprisonment the average defendant convicted of an offense should be sentenced to, absent the presence of legislatively prescribed factors in aggravation or mitigation or extraordinary circumstances.
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