State v. Hodari

• Decision Date: 03 March 2000
• Docket Number: No. S-8569.,S-8569.
• Citation: 996 P.2d 1230
• Parties: STATE of Alaska, Petitioner, v. Sababu HODARI, Respondent.
• Court: Alaska Supreme Court

996 P.2d 1230

STATE of Alaska, Petitioner, v. Sababu HODARI, Respondent.

No. S-8569.

Supreme Court of Alaska.

March 3, 2000.

W.H. Hawley, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Petitioner.

James Wendt, Anchorage, for Respondent.

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

Sababu O. Hodari was convicted of two counts of sexual assault in the first degree and one count each of robbery in the first degree and assault in the second degree. The trial court sentenced him to a composite sentence of fifty-five years to serve. Hodari appealed his sentence as excessive and the court of appeals remanded his case to the trial court to impose a sentence not to exceed forty years to serve.¹ The state petitioned and we granted review. Because the trial court's original sentence was not clearly mistaken, we reverse the court of appeals.

II. FACTS AND PROCEEDINGS

In the early morning of April 12, 1995, Hodari and three accomplices forced their way into a home in search of money. While there they committed a number of crimes: the four men raped and brutalized the mother, raped and brutalized her eighteen-year-old daughter who was eight and one-half months pregnant, and beat her fourteen-year old son and forced him to watch the atrocities committed against his mother and sister. In addition to being repeatedly raped, both the mother and daughter were made to perform fellatio on the intruders and each had a pistol forced into her vagina. Hodari forced a pistol into the pregnant daughter's vagina and he threatened to shoot the unborn child.

The four intruders took more than $7,000 in cash, jewelry valued at over $10,000, a stereo, and car tire rims. The interior of the house was left looking "like a tornado had hit it," with broken furniture strewn about and blood splattered on the walls.

In his twenty-three years Hodari had committed a long list of crimes. Prior to these acts Hodari had a "significant juvenile record" with the offenses including theft, burglary, and assault. As an adult he had two felony convictions for misconduct involving a controlled substance and numerous misdemeanor convictions, including misconduct involving a controlled substance and assault. However, because Hodari had not been sentenced on the second felony when he attacked the family, he was considered a second felony offender for presumptive sentencing purposes.²

Hodari had a "terrible record on probation," with numerous misdemeanor convictions while on probation, and he committed the present offenses while on probation.³ The trial court concluded, and the court of appeals agreed, that "it's pretty clear [Hodari is] not going to do anything he doesn't want to do, probation or no probation, parole or no parole, court orders or no court orders."⁴ Hodari had continued his refusal to abide by any rules by accumulating a remarkable record of non-compliance with prison regulations.⁵

Hodari pled nolo contendere to two counts of sexual assault in the first degree, an unclassified felony,⁶ and one count each of robbery in the first degree, a class A felony,⁷ and assault in the second degree, a class B felony.⁸ Judge Elaine Andrews sentenced Hodari to a fifty-five year composite sentence comprised of: (1) twenty-five years for each count of sexual assault in the first degree, with the terms to run consecutively; (2) fifteen years for robbery in the first degree, with the term to run concurrently; (3) five years for assault in the second degree, with the term to run consecutively.

Hodari appealed his sentence as excessive. The court of appeals agreed and remanded the case to the trial court with directions to impose a sentence not to exceed forty years of imprisonment. The court reasoned that relative to other similar cases "[h]is case fits within the cases where offenders have received a maximum sentence of forty years of imprisonment. We therefore conclude that a sentence of greater than forty years of imprisonment is excessive."⁹

We granted the state's petition for hearing.

III. DISCUSSION

A. Standard of Review

"Clearly mistaken" is the standard of review that we employ when reviewing sentencing decisions of a trial court.¹⁰ Likewise it is the standard of review that the court of appeals employs when it reviews a trial court's sentencing decision.¹¹ Accordingly, we give no deference to the court of appeals's conclusions when we grant a petition for review.

While we utilize the "clearly mistaken" standard of review, that standard should not be confused with the "abuse of discretion" standard. As we said in McClain v. State,¹² in describing the "clearly mistaken" and "zone of reasonableness" tests and distinguishing them from the "abuse of discretion" standard:

Implementation of these two formulations ["clearly mistaken" and "zone of reasonableness"] reveals a similar analytical framework which accounts for their combined use in some cases. Analytically, the clearly mistaken test implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify. The zone of reasonableness merely describes that range of reasonable sentences which after an independent review of the record will not be modified by the reviewing court.

The type of analysis involved in both of these formulations should not be confused with the abuse of discretion test. In the abuse of discretion test the reviewing court will sustain the lower court's sentence merely if some of the evidence supports the sentencing court's determination. An independent examination of the entire record is not a part of this test. Because of the limited review inherent in the abuse of discretion test, this court in Galaktionoff v. State, 486 P.2d 919, 923 (Alaska 1971), rejected its application to sentence appeals.¹³

The court of appeals has correctly analyzed the "clearly mistaken" standard and determined that it is a deferential standard of review:

[I]t gives considerable leeway to individual sentencing judges. The "clearly mistaken" test is founded on two concepts: first, that reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; second, that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision falls within "a permissible range of reasonable sentences."¹⁴

We stated in State v. Wentz¹⁵ that "[t]his `range of reasonableness,' ... should be determined not by imposition of an artificial ceiling which limits a large class of offenses to the lower end of the sentencing spectrum, but, rather, by an examination of the particular facts of the individual case in light of the total range of sentences authorized by the legislature for the particular offense."¹⁶

B. Was the Sentence Imposed by the Superior Court Clearly Mistaken?

1. Statutory law

a. Authorized sentences

The maximum sentences for Hodari's crimes are as follows: (1) thirty years for each count of first degree sexual assault, or a total of sixty years;¹⁷ (2) twenty years for one count of first degree robbery;¹⁸ (3) ten years for one count of second degree assault.¹⁹ In sum, the maximum Hodari could have been sentenced to is ninety years.

Alaska utilizes "presumptive sentencing."²⁰ The presumptive terms set out in the statute establish the appropriate sentence in most cases.²¹ The legislature has said that "[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."²²

Since Hodari had a prior felony conviction, his presumptive sentence is as follows: (1) fifteen years for the first count of first degree sexual assault, with at least some portion of an additional fifteen-year sentence for the second count to be consecutive;²³ (2) at least some part of ten years for one count of first degree robbery to be consecutive;²⁴ and (3) at least some part of four years for one count of second degree assault to be consecutive.²⁵ In sum, under presumptive sentencing, without accounting for aggravating factors, Hodari theoretically could have received a sentence of up to forty-four years. Because Hodari's crimes included first degree sexual assault and first degree robbery, there is a "preference" for consecutive rather than concurrent sentences.²⁶

b. Aggravating factors

A court may increase or decrease a presumptive sentence if there are mitigating or aggravating factors.²⁷ Judge Andrews found that the following aggravating factors²⁸ were proven:

1. Hodari's crime falls within the "most serious conduct" category.²⁹

2. He committed multiple acts on multiple victims.³⁰

3. He was the leader of a group of three or more persons who participated in the offense.³¹

4. The crimes were accompanied by exceptional gratuitous violence.³² 5. His victims were very vulnerable.³³

6. He had numerous misdemeanor convictions as an adult.³⁴

7. He forced entry into a home in the middle of the night.³⁵

8. He had a "terrible record on probation" with probation revocations and dirty urine analyses.

9. He actually had committed two felonies prior to this crime, but since he had not been convicted of the second felony before this crime it could not be considered for presumptive sentencing purposes.

10. He had a "significant juvenile record."

11. He had no verifiable employment and a "miserable work history."

12. He had received no alcohol or drug treatment.

13. He had a poor record while incarcerated.

As a result of the number and quality of the aggravators established by the evidence, as well as the facts of the crimes themselves, Judge Andrews found Hodari's record qualified him as a "dangerous offender." Judge Andrews's assessment of...