Juneby v. State

• Decision Date: 03 June 1983
• Docket Number: No. 5606,5606
• Citation: Juneby v. State, 665 P.2d 30 (Alaska App. 1983)
• Parties: Ivan Steven JUNEBY, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 30

665 P.2d 30

Ivan Steven JUNEBY, Appellant, v. STATE of Alaska, Appellee.

No. 5606.

Court of Appeals of Alaska.

June 3, 1983.

As Amended June 20, 1983.

Mary E. Greene, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant.

Peter A. Michalski, Asst. Atty. Gen., Anchorage, Barry J. Stern, Asst. Atty. Gen., and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., SINGLETON, J., and MOORE, Superior Court Judge. ^*

OPINION ON REHEARING

BRYNER, Chief Judge.

In the present case, Ivan Steven Juneby appealed a maximum, twenty-year sentence that he received upon conviction of first-degree sexual assault. Since Juneby had previously been convicted of one felony, his sentence was governed by the provisions of Alaska's presumptive sentencing statutes, AS 12.55.125 and AS 12.55.155. After considering the sentencing memoranda filed on behalf of Juneby and the state, we concluded that the sentencing court had failed to comply with the requirements of the presumptive sentencing statutes in several different respects; we therefore ordered that Juneby be resentenced. See Juneby v. State, 641 P.2d 823 (Alaska App.1982).

Following issuance of our opinion in Juneby, the State of Alaska filed a timely petition for rehearing. We granted the petition in order to allow both parties to submit additional briefs addressing various issues covered by our opinion. Having considered the briefs submitted on rehearing, we conclude that our original opinion in Juneby must be modified to a limited extent. In all other respects, we reaffirm the original opinion.

We consider first the issues raised by the state as to which we believe modification is necessary.

I. DUAL BURDEN OF PROOF WITH RESPECT TO AGGRAVATING AND MITIGATING FACTORS

The state has requested that we reconsider the language of our original opinion establishing a "dual burden" on the prosecution with respect to proof of aggravating factors. In the Juneby opinion, we stated that mere proof of an aggravating or mitigating factor, pursuant to subsection (c) or (d) of AS 12.55.155, does not necessarily require upward or downward adjustment of a presumptive sentence. We went on to note that AS 12.55.155(f), which requires proof of aggravating and mitigating factors by clear and convincing evidence, establishes a dual burden on the parties seeking to prove an aggravating or mitigating factor. We held, in relevant part:

The burden imposed upon parties to establish aggravating and mitigating circumstances may be likened to the procedural requirements governing probation revocation hearings. Revocation hearings involve two distinct phases: the first is to establish existence of a violation; the second is to determine if the violation actually warrants revocation of probation.... Similarly, in sentencing proceedings involving allegations of aggravating and mitigating circumstances, we believe that the provisions of AS 12.55.155(f) require the party seeking to establish a factor to bear a dual burden. First, the party must prove to the court by clear and convincing evidence the existence of the alleged factor, and, second, the party must provide the court with sufficient reasons to justify a conclusion, by clear and convincing evidence, that the factor warrants deviation from the statutorily prescribed presumptive sentence.

641 P.2d at 838 n. 28. It is this specific language that the state challenges on rehearing.

We agree that our holding with respect to the existence of a dual burden must be modified. We continue to view the adjustment of a presumptive sentence for aggravating or mitigating factors as essentially involving a two-step process. The first step is comprised of establishing existence of specifically alleged factors. Under AS 12.55.155(f) each alleged factor must be proved by clear and convincing evidence, and the proponent of the factor bears the burden of proof. Thus, the first step of the process is an evidentiary one, and it is at this stage that the burden of proof by clear and convincing evidence must be deemed to apply. The second step in adjusting presumptive sentences for aggravating or mitigating factors requires an evaluation by the court of factors that have been established, and a determination of the extent to which the factors will justify an upward or downward adjustment of the applicable presumptive term. This second step plainly involves a normative, or judgmental, element and not an evidentiary one.

As the state has correctly noted in its brief on rehearing, application of an evidentiary burden to the second step of the process is confusing and makes little sense. As we expressly held in our Juneby opinion:

Once a sentencing court has correctly interpreted and applied the presumptive sentencing provisions of the code and has properly determined the existence of aggravating or mitigating factors, then it will have the discretion to adjust the presumptive sentence for the particular offense .... In such instances the Chaney [State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) ] criteria, as stated in AS 12.55.005(2)-(6), will be relevant to the sentencing court's determination of the amount by which the presumptive term should be adjusted.

641 P.2d at 835 (footnote omitted).

We believe that the portion of our original opinion imposing a dual burden of proof is inconsistent with the basic holding of the case concerning applicability of the Chaney criteria in determining the extent to which an aggravating or mitigating factor, once established, will justify adjustment of a presumptive term. To the extent that our original holding implied that the task of determining the amount by which a presumptive sentence should be increased upon proof of an aggravating factor is an evidentiary one for which the state is responsible, instead of a judicial one for which the court is responsible, the original opinion is modified.

A word of caution concerning the burden of proving aggravating and mitigating factors is nevertheless in order. As we have indicated, sentencing judges must determine the amount by which a presumptive term should be increased or decreased for aggravating or mitigating factors by applying the Chaney analysis to the particular factors established by the evidence. We believe it to be clear that, in making this determination, sentencing judges are required by the provisions of AS 12.55.155(f) to rely on only those facts pertaining to the alleged aggravating or mitigating factors that are supported by clear and convincing evidence. For example, in a case where the prosecution alleged physical injury as an aggravating factor, if the evidence clearly established the existence of minor injury to the victim and merely indicated the possibility of other, more serious injuries, then the sentencing court, in determining the extent to which the presumptive term should be increased, could not properly proceed on the assumption that the victim had sustained serious physical injuries; nor could the court, consistent with AS 12.55.155(f), shift to the defendant the burden of showing that the injuries suffered by the victim were not serious.

II. MERGER OF SEPARATE AGGRAVATING OR MITIGATING FACTORS

The state also challenges the portion of our holding in Juneby in which we considered the appropriate procedure for cases where identical conduct by the accused constituted more than one aggravating factor. We held, in relevant part:

We recognize that the same circumstances may often form the basis for two or more aggravating or mitigating factors. In such cases, sentencing courts should make specific findings as to all aggravating or mitigating factors established by the evidence. However, when several aggravating or mitigating factors are based on precisely the same conduct and intent, they should be treated by the court as merging, and the least significant factors should be deemed included in the most significant. The presumptive sentence can then be adjusted based upon consideration of the most significant factor.

641 P.2d at 843 n. 33.

In retrospect, we think our original holding on this issue is problematical. The state correctly points out that requiring "merger" of all aggravating or mitigating factors based on the same conduct and intent of the defendant will lead to undesirable consequences. If, for example, a defendant inflicts injuries on his victim by using a dangerous instrument in a manner that manifests deliberate cruelty, the same conduct and intent would result in the existence of three separate aggravating factors. See AS 12.55.155(c)(1), (2), and (4). Yet our original holding would preclude separate consideration of these three factors, even though each is independent of the other. Moreover, although the merger rule stated in our original decision would permit consideration of all three factors insofar as the two less significant factors were deemed to be merged into the single most significant factor, such an analysis would inevitably be artificial. Because the three aggravating factors are independent, there is simply no realistic means to determine which of the factors should be deemed most important or which factors should be deemed of lesser importance.

Accordingly, we think it appropriate to modify the portion of our Juneby opinion indicating that a separate consideration of aggravating or mitigating factors is inappropriate in all cases where two or more factors are based on the same conduct and intent of the accused. We believe that our holding must be tailored more narrowly to the specific circumstances presented by Juneby's case. The sentencing judge in Juneby's case found that Juneby caused physical injury to V.W., his victim, and that he had acted with deliberate cruelty. Two aggravating factors were thus established. See AS 12.55.155(c)(1) and (2). The judge further found Juneby's crime to be aggravated in that it was among the most serious conduct included...