State v. Andrews

• Decision Date: 06 September 1985
• Docket Number: Nos. A-468,A-492 and A-552,s. A-468
• Citation: 707 P.2d 900
• Parties: 28 Ed. Law Rep. 584 STATE of Alaska, Petitioner, v. Peter ANDREWS, Sr., Respondent. Peter ANDREWS, Sr., Appellant, v. STATE of Alaska, Appellee. George R. KOENIG, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 900

707 P.2d 900

28 Ed. Law Rep. 584

STATE of Alaska, Petitioner, v. Peter ANDREWS, Sr., Respondent.

Peter ANDREWS, Sr., Appellant, v. STATE of Alaska, Appellee.

George R. KOENIG, Appellant, v. STATE of Alaska, Appellee.

Nos. A-468, A-492 and A-552.

Court of Appeals of Alaska.

Sept. 6, 1985.

Cynthia M. Hora, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for petitioner in No. A-468, and appellee in No. A-492.

John M. Murtaugh, Anchorage, for respondent in No. A-468, and appellant in No. A-492.

Laurel J. Peterson, Anchorage, for appellant in No. A-552.

Michael N. White, Dist. Atty., Palmer, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee in No. A-552.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

SINGLETON, Judge.

Peter Andrews, Sr., and George R. Koenig are school teachers. In unrelated prosecutions, each was convicted of multiple counts of sexual abuse and sexual assault on their elementary school female pupils. Andrews and Koenig are first offenders. Neither has a juvenile or adult criminal record. Andrews received concurrent sentences totaling eight years' imprisonment, and Koenig received consecutive sentences totaling forty years with twenty years suspended. Koenig's sentences were based in part on the trial court's conclusion that consecutive sentences were mandatory when a defendant is convicted of multiple counts of sexual assault involving different victims. AS 12.55.025(e). Andrews' sentences were based in part on an opposite conclusion by the trial court in his case.

The primary issue in each appeal is the proper interpretation of AS 12.55.025(e) and (g). On our own motion, we have therefore consolidated them for decision. In Andrews' case, the state contends that where an individual is convicted of multiple counts of sexual assault, he must receive consecutive sentences, at least where his sexual abuse involves separate victims. In contrast, Andrews argues that the legislature has expressed a preference for consecutive sentences but that the trial court has discretion to reject that preference in an appropriate case. Judge Lewis accepted Andrews' argument below and sentenced Andrews to concurrent terms. The state has petitioned for review and we consider the issue of sufficient importance to warrant our granting review. ¹ In Koenig's case, Judge Hanson was of the view that consecutive sentences were mandatory. He therefore gave Koenig consecutive sentences. Koenig appeals, contending that those sentences were excessive. We have carefully reviewed the record and conclude that AS 12.55.025(e) and (g) express a preference for consecutive sentences which a trial court has discretion to reject in appropriate circumstances. We therefore affirm Andrews' sentences and vacate Koenig's sentences, remanding his case for resentencing. We also set out some guidelines to be applied to Koenig in resentencing. We set out the relevant facts regarding each of these two defendants and then proceed to a discussion of the issues.

ANDREWS

Peter Andrews, Sr., was convicted of four counts of sexual abuse of a minor, a class C felony, former AS 11.41.440(a)(2), ² and seven counts of sexual assault in the first degree, an unclassified felony, former AS 11.41.410(a)(3). ³ Andrews was sentenced to five years for each count of sexual abuse and eight years (the presumptive term) for each count of first-degree sexual assault; all terms were imposed concurrently.

The charges against Andrews involved three victims: K.E. (age nine), L.K. (age ten) and D.M. (age ten). All the offenses took place between November 1, 1982, and June 21, 1983, mainly at the village school in Aleknagik, where Andrews worked as a teacher's aide. The only incident involving K.E. was one in which Andrews touched her breasts and vaginal area. L.K. was subjected to digital penetration on at least two occasions as well as less serious sexual contact similar to that suffered by K.E. In addition to less serious contact, D.M., the third victim, was subjected to digital and penile penetration of her anus, and digital, penile and oral penetration of her vagina. L.K. told police that the penile penetration hurt her and on at least one occasion made her bleed. Andrews' contact with D.M. was the most extensive. Andrews would take D.M. into the language lab, both during school and when school was not in session. Sometimes he would cover her mouth to keep her from yelling. On at least one occasion, Andrews enticed D.M. to his home and abused her. He also arranged for D.M. to work for him, so he could engage in sexual conduct more freely. Andrews apparently gave money or candy to his victims, but at no time threatened them with physical harm.

Andrews is a well-respected member of the Aleknagik community. He has served as mayor and, at the time of his arrest, was a member of the city council. In addition to his work as a teacher's aide at the school, Andrews has also served as a lay minister for the Moravian Church and has been employed as a fisherman. Andrews is in poor health. He has had multiple tumors removed from his bladder and will probably need ongoing medical treatment. Andrews was fifty-nine years of age at the time of sentencing. His formal education ended with the eighth grade. He is married and has thirteen children, six of whom continue to live with him. Andrews was honorably discharged from the United States Army.

Judge Lewis carefully considered the Chaney criteria. State v. Chaney, 477 P.2d 441 (Alaska 1970). He recognized the state's argument that consecutive sentences were mandatory under AS 12.55.025(e) and (g), but concluded that when read together with article I, section 12 of the Alaska Constitution, ⁴ and AS 12.55.005, ⁵ the statute permits imposition of concurrent sentences under some circumstances. He concluded that while there was a statutory preference for consecutive sentences, the legislature has given trial courts discretion to reject that preference where necessary to serve the defendant's rehabilitation and the protection of the community. The court noted that in light of Andrews' age and poor health, a sentence in excess of eight years would be a virtual life sentence. The court therefore concluded that on the peculiar facts of this case, concurrent sentences requiring that Andrews serve no more than eight years' incarceration would fully satisfy all of the statutory requirements.

In reaching this conclusion, Judge Lewis did not minimize the significance of Andrews' offenses. He noted that Andrews, as a teacher and community leader, had the respect and confidence of his victims and, in effect, abused a trust in subjecting them to sexual abuse. He further noted that Andrews exhibited no remorse and that, despite the jury verdicts, Andrews refused to acknowledge any guilt or responsibility, characterizing his touching of the victims as normal activity between teacher and student. Finally, Judge Lewis recognized, in part based upon his observation of the demeanor of the victims as they testified, that they had all suffered substantial psychological injury and would probably require extensive counseling in the future in order to have any hope of a psychologically healthy adult life.

KOENIG

George R. Koenig was thirty-three years of age at the time of his offenses. He has a master's degree in philosophy and was the music and language teacher at a Wasilla grammar school. Koenig was initially charged with sixteen counts of sexual abuse and sexual assault involving eight victims: S.L.F. (age nine); K.L.M. (age nine); M.A.S. (age twelve); D.M.I. (age eight); J.L.S. (age nine); G.L.H. (age eleven); E.E. (age eight); and H.D.K. (age eight). As part of a plea agreement, Koenig entered a plea of nolo contendere to three charges, and the state dismissed the other thirteen with the understanding that it could bring out evidence regarding all sixteen offenses at sentencing. Koenig was therefore convicted of one count of sexual abuse of a minor in the first degree, an unclassified felony, AS 11.41.434(a)(1), based upon digital penetration of H.D.K., and two counts of sexual abuse of a minor in the second degree, a class B felony, AS 11.41.436(a)(2), based upon, respectively, the touching of K.L.M.'s vagina and the touching of E.E.'s breasts. ⁶ Koenig was sentenced to twenty years with ten suspended on the first-degree sexual abuse conviction, and ten years with five suspended on each of the second-degree sexual abuse convictions. All three sentences were made consecutive, so that Koenig received a total sentence of forty years with twenty years suspended.

Judge Hanson considered a number of factors in framing the sentence as he did. First, he concluded the consecutive sentences were mandatory for sexual assaults involving separate victims under AS 12.55.025(e) and (g). Second, he noted that Koenig had abused a position of trust since he was a school teacher and since all of the acts of sexual abuse occurred during school hours. Third, he recognized that Koenig's victims in the offenses to which he pled were particularly young, eight and nine years of age, and therefore vulnerable. See AS 12.55.155(c)(5). Finally, he noted a report by Dr. Rothrock, a psychiatrist, that Koenig was a pedophile and that his prognosis for rehabilitation was guarded. These factors led Judge Hanson to conclude that Koenig's conduct was the worst contemplated within the definitions of the offenses charged. AS 12.55.155(c)(10). Because two aggravating factors were found, Judge Hanson was not limited by the eight-year presumptive term prescribed for the single count of first-degree sexual abuse.

In Koenig's favor, Judge Hanson noted that Koenig's offenses involved sexual touching including digital penetration but no genital intercourse, that Koenig was a hard worker, that he was a well-educated, intelligent man, and that he had expressed a substantial amount of remorse and actively sought treatment in the...