State v. Chaney
|07 December 1970
|477 P.2d 441
|STATE of Alaska, Appellant, v. Donald Scott CHANEY, Appellee.
|Alaska Supreme Court
G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellant.
Herbert D. Soll, Asst. Public Defender, Anchorage, for appellee.
Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ.
Appellee Donald Scott Chaney was indicted on two counts of forcible rape and one count of robbery. After trial by jury, appellee was found guilty on all three counts. The superior court imposed concurrent one-year terms of imprisonment and provided for parole in the discretion of the parole board. The State of Alaska has appealed from the judgment and commitment which was entered by the trial court.
First impression issues concerning Alaska's recently enacted legislation establishing appellate review of criminal sentences are presented in this appeal. In Bear v. State, 1 this court concluded that it lacked 'jurisdiction to review and remand or to review and revise a criminal sentence for abuse of discretion.' 2 Bear was subsequently followed in Faulkner v. State 3 and Thessen v. State. 4 In 1969, the Alaska legislature enacted legislation providing for appellate review of criminal sentences. 5 The 1969 act, codified as AS 12.55.120, states in part that:
(a) A sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms exceeding one year may be appealed to the supreme court by the defendant on the ground that the sentence is excessive. By appealing a sentence under this section, the defendant waives the right to plead that by a revision of the sentence resulting from the appeal he has been twice placed in jeopardy for the same offense.
(b) A sentence of imprisonment lawfully imposed by the superior court may be appealed to the supreme court by the state on the ground that the sentence is too lenient; however, when a sentence is appealed by the state and the defendant has not appealed the sentence, the court is not authorized to increase the sentence but may express its approval or disapproval of the sentence and its reasons in a written opinion. 6
In the case at bar, the state has appealed from the sentence imposed. In such circumstances, the provisions of subsection (b) of AS 12.55.120 prohibit any increase in the sentence which was passed by the trial court although this court may express its approval or disapproval of the sentence in a written opinion.
This appeal is the first by the state under the 1969 act. Since this legislation is of great significance to the administration of criminal justice in the State of Alaska, we deem it important to express our approval or disapproval of sentences within this category of sentence appeal. 7 For in our view, the 1969 sentence appeal statute manifests the legislature's awareness of existing deficiencies in sentencing practices throughout Alaska's entire court system and the compelling necessity of developing appropriate sentencing criteria. The primary goal of such legislation is an attempt to implement Alaska's constitutional mandate that 'Penal administration shall be based on the principle of reformation and upon the need for protecting the public.' 8
In the case at bar, appellant, the State of Alaska, claims that the one-year concurrent sentences were too lenient in view of the severity of the crimes of forcible rape and robbery, the need to deter others from such brutal behavior, and in view of the presentence recommendations, all of which called for significantly greater sentences than those which were imposed by the superior court.
At the threshold, we are confronted with the problem of determining the scope of our review of criminal sentences under the 1969 act. As we interpret this legislative enactment, it is our duty to examine the proceedings below to review for excessiveness or leniency the sentence imposed by the trial court, in light of the nature of the crime, the defendant's character, and the need for protecting the public. We are also obliged to consider the manner in which the sentence was imposed, including the sufficiency and accuracy of the information upon which it was based. 9 Sentence review by this court must be carried out with a view to effectuate the purposes of the 1969 act, as well as the goals of sentence review in general. The objectives of sentence review have been said to be:
(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. 10
We think this a fair statement of some of the general objectives of sentencing review.
Sentencing is a discretionary judicial function. 11 When a sentence is appealed, we will make our own examination of the record and will modify the sentence if we are convinced that the sentencing court was clearly mistaken in imposing the sanction it did. 12 Under Alaska's Constitution, the principles of reformation and necessity of protecting the public constitute the touchstones of penal administration. 13 Multiple goals are encompassed within these broad constitutional standards. Within the ambit of this constitutional phraseology are found the objectives of rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. 14
In Faulkner v. State, 15 it was said, determination of an appropriate sentence involves the judicious balancing of many and ofttimes competing factors * * * (of which) primacy cannot be ascribed to any particular factor. 16
We now turn to the facts of the case at bar. At the time appellee committed the crimes of forcible rape and robbery, he was an unmarried member of the United States Armed Forces stationed at Fort Richardson, near Anchorage, Alaska. 17 Appellee was born in 1948, the youngest of eight children. His youth was spent on the family's dairy farm in Washington County, Maryland. He played basketball on the Boonsboro High School team, was a member of Future Farmers of America and the Boy Scouts. Appellee did not complete high school, having dropped out one month prior to graduation. 18 After a series of varying types of employment, appellee was drafted into the United States Army in 1968. At sentencing, it was disclosed that appellee did not have any prior criminal record, was not a user of drugs, and was only a social drinker.
From the record that has been furnished, it appears that appellee and a companion picked up the prosecutrix at a downtown location in Anchorage. After driving the victim around in their car, appellee and his companion beat her and forcibly raped her four times. 19 During this same period of time, the victim's money was removed from her purse. Upon completion of these events, the prosecutrix was permitted to leave the vehicle to the accompaniment of dire threats of reprisals if she attempted to report the incident to the police.
The presentence report which was furnished to the trial court prior to sentencing contains appellee's version of the rapes. According to appellee, he felt 'that it wasn't rape as forcible and against her will on my part.' As to his conviction of robbery, appellee states: 'I found the money on the floor of the car afterwards and was planning on giving it back, but didn't get to see the girl.' At the time of sentencing, appellee told the court that he 'didn't direct any violence against the girl.'
The Division of Corrections, in its presentence report, recommended appellee be incarcerated and parole be denied. The assistant district attorney who appeared for the state at the time of sentencing recommended that appellee receive concurrent seven-year sentences with two years suspended on the two rape convictions, and that the appellee be sentenced to a consecutive five-year term of imprisonment on the robbery conviction, and that this sentence be suspended and appellee be placed on probation during this period of time. 20 At the time of sentencing, a representative of the Division of Corrections recommended that appellee serve two years on each of the rape convictions and that appellee be sentenced to two years suspended with probation as to the robbery conviction. In his opinion, there was 'an excellent possibility of * * * early parole.' Counsel for appellee concurred in the Division of Corrections' recommendation. As was indicated at the outset, the trial court imposed concurrent one-year terms of imprisonment and provided for parole at the discretion of the parole board. 21 The trial judge further recommended that appellee be placed in a minimum security facility.
In imposing this sentence, the trial judge remarked that he was 'sorry that the (military) regulations would not permit keeping (appellee) * * * in the service if he wanted to stay because it seems to me that is * * * a better setup for everybody concerned than putting him in the penitentiary.' 22 At a later point in his remarks, the trial judge said:
Now as a matter of fact, I...
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