Mutschler v. State, 2764

• Decision Date: 16 February 1977
• Docket Number: No. 2764,2764
• Citation: 560 P.2d 377
• Parties: Michael W. MUTSCHLER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 377

560 P.2d 377

Michael W. MUTSCHLER, Appellant, v. STATE of Alaska, Appellee.

No. 2764.

Supreme Court of Alaska.

Feb. 16, 1977.

Chris J. Rigos, Asst. Public Defender and Brian Shortell, Public Defender, Anchorage, for appellant.

Ivan Lawner, Asst. Dist. Atty. and Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

OPINION

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.

BOOCHEVER, Chief Justice.

In this appeal, the defendant raises the sole issue as to whether the sentencing judge was clearly mistaken in ordering two terms of incarceration imposed to run consecutively, instead of concurrently.

Michael Mutschler was found guilty by a jury on two counts of assault with a dangerous weapon in violation of AS 11.15.220. The offense involved cutting one individual on the leg and another on the back with a knife during a brief fight which occurred in the enclosed entranceway to the Alyeska Ski Resort. ¹

The maximum sentence for violation of AS 11.15.220 ² is ten years. For two counts, the total would be twenty years. The trial judge imposed two sentences of three years each-the first sentence with one year suspended, and the second sentence with two years suspended. The sentences were made consecutive.

AS 11.05.050 specifies:

Consecutive sentences. If the defendant is convicted of two or more crimes, before judgment on either, the judgment may be that the imprisonment upon one conviction begins at the expiration of the imprisonment for any other of the crimes. If the defendant is imprisoned upon a previous judgment on a conviction for a crime, the judgment may be that the imprisonment commences at the expiration of the term limited by the previous judgment.

In State v. Chaney, 477 P.2d 441, 443 (Alaska 1970), we discussed the objectives of sentence review as set forth by the American Bar Association Standards Relating to Appellate Review of Sentences as follows:

(i) to correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest;

(ii) to facilitate the rehabilitation of the offender by affording him an opportunity to assert grievances he may have regarding his sentence;

(iii) to promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process; and

(iv) to promote the development and application of criteria for sentencing which are both rational and just. ³

Our review of Mr. Mutschler's sentence is in the context of endeavoring to increase the fairness of the sentencing process and to promote the development and application of criteria for sentencing which are both rational and just.

It is not contended that the imposition of consecutive sentences in this case violates the double jeopardy provisions of art. I, sec. 9 of the Alaska Constitution. ⁴ Counsel argues, however, that the two stabbings should be considered as one general transaction and a single criminal episode. He argues that ordering the sentences to be served consecutively was improper and thus rendered the sentences excessive.

Reliance is placed on the case of State v. Pete, 420 P.2d 338, 342 (Alaska 1966), decided prior to the enactment of AS 12.55.120, ⁵ authorizing appellate review of sentences. Pete was found guilty of two counts of unlawful sale of intoxicating liquor. Both counts involved sales of a bottle to the same individual, and both sales occurred on the same day. Pete was sentenced to two consecutive maximum terms of one year imprisonment. The majority of the court stated that:

In light of the fact that the two offenses were really part of one general transaction involving the unlawful sale of liquor, we believe the judgment of conviction should be modified so as to limit appellee's sentences to the term of imprisonment that he has now served.

Pete had already served seventeen and one-half months, and the court did not vacate the consecutive portion of the sentence. Thus, Pete cannot be read as holding that consecutive sentences are impermissible in the circumstance where the separate offenses are part of one general occurrence or transaction. ⁶

The later case of Davenport v. State, 543 P.2d 1204 (Alaska 1975), expressly upheld the imposition of two consecutive ten-year sentences for robbery of two individuals during the same transaction. ⁷ In Davenport, Justice Connor, speaking for a unanimous court, stated:

In deciding whether multiple sentences can be imposed for a criminal act resulting in harm to more than one victim, we must address the question in light of the basic interests of society to be vindicated or protected. We have stated, in this regard, that the 'focus must be on the intent and conduct of the perpetrator' so that the 'punishment may fit the crime.' Thessen, (v. State, Alaska, 508 P.2d 1192) supra at 1197.

Generally, we agree with the Galifornia Supreme Court, which observed:

'A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person.' Neal v. State, 55 Cal.2d 11, 9 Cal.Rptr. 607, 612, 357 P.2d 839, 844 (1960).

Specifically, we are concerned with the increased harm or propensity for harm which inheres in a multiple victim robbery. As the dignity and sensibilities of each individual are affronted, the possibility of violence or bodily injury to one or more of the persons present increases. In addition, we are mindful that each victim of a robbery, as an individual, quite probably suffers fear, anxiety, and resentment as the result of this crime against his or her person. ⁸

In Davenport, we expressly held that there was no error in the imposition of consecutive sentences. ⁹ Davenport thus establishes that consecutive sentences may be imposed when separate offenses with separate intents are committed during a brief time interval in the course of one general transaction.

Defendant also relies on Faulkner v. State, 445 P.2d 815 (Alaska 1968), another case decided prior to enactment of AS 12.55.120. Faulkner was found guilty of seven counts of drawing checks with insufficient funds with intent to defraud in violation of AS 11.20.230, and one count of issuing a check without funds or credit in violation of AS 11.20.210. Consecutive sentences of five years each were imposed on the first seven counts, and an additional consecutive sentence of one year on the remaining count. Faulkner's sentence thus totaled thirty-six years imprisonment. In the Faulkner opinion, rendered by this court without agreement by a majority, Justice Dimond held that the sentences violated the constitutional prohibition against cruel and unusual punishment, ¹⁰ Justice Rabinowitz held that the court had the power to review sentences and that the sentence was excessive, ¹¹ while Chief Justice Nesbett would have affirmed the sentences imposed. ¹² The case affords little precedential value and certainly is not a basis for overruling the sentence imposed here. None of the three separate opinions concludes that consecutive sentences were inappropriate in that case.

In a different context, we held in State v. Wortham, 537 P.2d 1117 (Alaska 1975), that the superior court was clearly mistaken in imposing a four-year sentence for larceny in a building in violation of AS 11.20.150 to run concurrently with an eight-year sentence previously imposed by the United States District Court for the District of Alaska. We held that the superior court's sentence was too lenient because no portion of the four-year term was made to run consecutively to the eight-year federal sentence. In Wortham, however, we were considering a sentence imposed for an unrelated offense while the defendant was already subject to a prior sentence rather than simultaneous sentences for separate counts arising out of one transaction.

Problems similar, in part, to Wortham were presented in Cleary v. State, 548 P.2d 952 (Alaska 1976). There, Cleary was sentenced by the United States District Court to serve five years for armed bank robbery. He was then convicted in state court for five additional counts of robbery. All six offenses were committed within a three-week period by Cleary who was addicted to an expensive drug. The superior court imposed two consecutive ten-year sentences to run consecutively to the federal sentence. While finding that the cumulative sentences were excessive, ¹³ we held that a sentence should run consecutively to the federal imposition as in Wortham.

In Cleary, supra at 596, we referred to the American Bar Association's Standards on Sentencing Alternatives and Procedures, quoting from Sec. 3.4 at page 24 (Approved Draft 1968) as follows:

Imposition of a consecutive sentence should require the affirmative action of the sentencing court. The court should be authorized to impose a consecutive sentence only after a finding that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant.

It is Mr. Mutschler's contention that other provisions of Sec. 3.4 of the standards mitigate against imposition of consecutive sentences in his case. Specifically, he points out that Sec. 3.4(b) states that consecutive sentences are rarely appropriate, and that authority to impose such sentences should be circumscribed by statutory limitations. ¹⁴

Here, in reconsidering the sentence, ¹⁵ Judge Occhipinti set forth his reasons for imposing consecutive sentences as follows:

The jury found him guilty of a very serious crime. He cut 2 people up. . . . I could very easily justify a 7 or 8 or 9...