Adrian T. Olmstead v. State of Alaska ( 2020 )

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ADRIAN T. OLMSTEAD,
Court of Appeals No. A-12784
Appellant, Trial Court No. 1KE-16-00055 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2683 — November 6, 2020
Appeal from the Superior Court, First Judicial District,
Ketchikan, Trevor N. Stephens, Judge, and the Statewide
Three-Judge Sentencing Panel, Anna M. Moran, Michael P.
McConahy, and Eric A. Aarseth, Judges.
Appearances: Gavin Kentch, Law Office of Gavin Kentch,
LLC, under contract with the Public Defender Agency, and
Quinlan Steiner, Public Defender, Anchorage, for the
Appellant. Eric A. Ringsmuth, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Coats,
Senior Judge.*
*
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
Judge ALLARD.
Adrian T. Olmstead pleaded guilty to one count of second-degree sexual
abuse of a minor for engaging in sexual contact with his niece.1 At sentencing, the
superior court found that Olmstead had proved the non-statutory mitigating factor of
exemplary post-offense conduct, and the superior court referred Olmstead’s case to the
statewide three-judge sentencing panel.2 However, the three-judge panel found that
Olmstead had failed to prove the non-statutory mitigator, and the case was remanded to
the superior court for sentencing within the presumptive range.
Olmstead appeals the three-judge panel’s decision. For the reasons
explained here, we conclude that Olmstead established the non-statutory mitigating
factor of exemplary post-offense conduct. Accordingly, we vacate Olmstead’s sentence
and remand this case to the three-judge panel for reconsideration of what effect, if any,
the non-statutory mitigator should have on Olmstead’s sentence.
Factual and procedural history
At the time of his offense, nineteen-year-old Olmstead lived with his
parents in a household with strong religious structure. Olmstead had frequent contact
with his four-year-old nephew, K.R., and his six-year-old niece, L.R., who visited their
grandparents and slept overnight on a regular basis.
In late January 2016, L.R. and K.R. disclosed to their parents a “game” they
had played with Olmstead where he had his pants down, they saw his genitals, and they
1
AS 11.41.436(a)(2). Olmstead was charged with two counts relating to his niece, and
one count relating to his nephew. He pleaded guilty to one count relating to his niece, but
he admitted to the facts underlying all three charges.
2
See State v. McKinney, 946 P.2d 456, 457-58 (Alaska App. 1997).
–2– 2683
grabbed his “pee pee.” L.R. also said she had seen her uncle with his pants off at other
times and that he “moons” them.
When confronted by his sister and brother-in-law about the children’s
statements, Olmstead admitted that most of what the children said was true. He
expressed remorse and apologized. The following day, he also volunteered details about
another incident that occurred months earlier when he pulled down L.R.’s pants and
briefly touched and patted her vagina while playing a game of “doctor” with L.R. At the
request of the victims’ parents, Olmstead agreed to undergo mental health counseling.
Olmstead attended a mental health assessment the next day. The mental
health therapist later reported that Olmstead was “cooperative” and “corroborated the
information his sister [the victims’ mother] provided earlier.” She found that he was “a
reliable reporter regarding his interactions with his niece and nephew, although
extremely naive in terms of sexual taboos.” According to the therapist, Olmstead was
“willing to comply with any recommendations made,” and he agreed to return the next
day but was ultimately unable to do so because he was arrested. The therapist concluded
her report with the following analysis:
In summary, I was impressed by Mr. Olmstead’s ownership
of his actions. He easily could have denied all accusations,
which would have catapulted his niece and nephew in a
lengthy investigation. His immediate confession protected
those for whom he cared deeply.
The abuse was reported to law enforcement on the same day that Olmstead attended the
mental health assessment. The next day, the children were interviewed by the police.
In her interview, L.R. reported that both she and Olmstead had their pants pulled down
during the game of “doctor,” and that Olmstead had “patted” her vagina and put his
hands “between her butt cheeks,” spreading them apart. She also reported that Olmstead
had asked her to “touch his butt,” and his penis, but she refused.
–3– 2683
Olmstead was then contacted by law enforcement and asked to come to the
police station for an interview. Against the advice of his parents, Olmstead voluntarily
went to the police station without a lawyer. Olmstead waived his right to counsel and
agreed to be interviewed by the police. In the interview, Olmstead confessed to the
sexual interactions with his niece and nephew, largely confirming their reports.
Olmstead also admitted to having an erection during five of the interactions.
At the end of the interview, Olmstead was arrested and charged with three
counts of second-degree sexual abuse of a minor and two counts of second-degree
indecent exposure.3
During the same week that he was arrested, Olmstead also contacted — on
his own initiative — the elders at his church to confess to what he had done and to seek
spiritual guidance. After Olmstead was released on bail, he attended weekly meetings
at the church for about four hours a week. He also received one-on-one pastoral
counseling for one to two hours a week.
Olmstead subsequently pleaded guilty to one count of second-degree sexual
abuse of a minor in exchange for dismissal of the remaining charges. The plea
agreement provided that his active term of imprisonment would be capped at 8 years and
that one aggravating factor applied to his conduct — the victim was particularly
vulnerable given her age.4 As part of the plea agreement, Olmstead also admitted to the
conduct underlying the dismissed charges.
At the sentencing hearing, Olmstead and his mother testified. His mother
described Olmstead’s sheltered and religious upbringing. Olmstead testified to his
3
AS 11.41.436(a)(2) and AS 11.41.460, respectively.
4
AS 12.55.155(c)(5).
–4– 2683
attempts to be as honest as he could be and to atone for what he had done. In describing
his own conduct, Olmstead referred to it as a “game” that had gone too far.
Olmstead’s attorney asked the sentencing judge to refer Olmstead’s case
to the statewide three-judge sentencing panel to consider two non-statutory mitigating
factors: exemplary post-offense conduct and extraordinary potential for rehabilitation.5
The sentencing judge ruled first that Olmstead had not established the non-
statutory mitigating factor of extraordinary potential for rehabilitation. The judge
acknowledged that there was good reason to be optimistic about Olmstead’s potential for
rehabilitation, and he noted that many of the factors supporting the non-statutory
mitigating factor of extraordinary potential for rehabilitation existed in Olmstead’s case,
such as remorse, lack of prior criminal history, and family support. But the judge
ultimately concluded that Olmstead had failed to meet his burden of proving
extraordinary potential for rehabilitation because Olmstead had failed to provide a sex
offender risk assessment or other expert evaluation that could have clarified why this
conduct happened and why it would not happen again.
The judge agreed, however, that Olmsteadhad established the non-statutory
mitigating factor of exemplary post-offense conduct. In his written order transmitting
the case to the three-judge panel, the judge catalogued the actions that Olmstead had
taken that constituted exemplary post-offense conduct. The judge noted first Olmstead’s
prompt confession and apology:
Mr. Olmstead promptly confessed when confronted by K.R.’s
father about the incident with K.R. He contacted K.R.’s
parents later that day and expressed remorse and
acknowledged that the children were basically telling the
5
Olmstead also requested referral on the basis of the non-statutory “cumulative”
mitigating factor recognized in Luckart v. State, 270 P.3d 816, 820 (Alaska App. 2012). The
sentencing judge rejected this basis for referral.
–5– 2683
truth. He met with K.R.’s father a day or two later and during
that conversation he talked about the “doctor” incident
involving L.R., which apparently had not previously been
brought up. The family met and decided that the best course
of action would be for Mr. Olmstead to seek counseling,
which he did.
The judge also noted Olmstead’s cooperation with the police and the other steps he took
to minimize the harm to the victims:
Mr. Olmstead . . . did voluntarily go to [the police] without
counsel where he waived his Miranda rights and agreed to be
interviewed. He confessed during the interview. He pled
guilty without the case going to trial, so neither K.R. nor L.R.
was required to testify in open court. He wrote a letter to the
victims in which he accepted responsibility and apologized
for his actions. He has consistently and continually,
throughout this case, accepted responsibility for his conduct,
apologized to the [sic] L.R., K.R., their parents and his
family, and there is nothing in the record which shows or
suggests that he has blamed L.R. or K.R. for anything.
Based on these actions, the judge found that Olmstead had established the non-statutory
mitigator of exemplary post-offense conduct, noting that, in his view, “[t]his is not a
particularly close call.” In a footnote in his written order, the judge acknowledged that
the victims’ family was currently estranged from the extended family, but he found that
Olmstead’s post-offense conduct had not contributed to the intra-family problems.
In addition to finding exemplary post-offense conduct, the judge also found
that it would be manifestly unjust for Olmstead to be ineligible for discretionary parole
once he completed sex offender treatment in prison.
Based on the judge’s findings, Olmstead’s case was transferred to the
statewide three-judge sentencing panel. The three-judge panel held a hearing in which
Olmstead’s father testified and the victims’ father made a brief statement. Olmstead did
–6– 2683
not testify, although the panel had a transcript of his testimony from the superior court
sentencing.
At one point, Olmstead’s father was questioned about Olmstead’s
counseling. Olmstead’s father testified that Olmstead was unable to continue with the
mental health counseling during his pretrial release because he did not have the money.
He noted, however, that Olmstead continued to attend weekly meetings at the church and
to engage in one-on-one pastoral counseling. When asked why Olmstead had not seen
any specialized sex offender therapists, Olmstead’s father stated that the family did not
know “who to talk to about that.”
Following the hearing, the three-judge panel issued an order rejecting the
non-statutory mitigating factor of exemplary post-offense conduct. In rejecting the non-
statutory mitigator, the three-judge panel primarily focused on (1) the current
estrangement between the victims’ family and the extended family; (2) Olmstead
referring to the sexual abuse as a “game” that went “too far,” which the three-judge panel
viewed as “minimiz[ing]” his behavior; and (3) Olmstead failing to provide a sex
offender risk assessment or to attend sex offender treatment prior to sentencing.
Because the three-judge panel rejected the superior court’s grounds for
referral, Olmstead’s case was remanded to the superior court for sentencing.6 At
sentencing, the judge imposed a sentence of 10 years with 5 suspended, 5 years to serve
— the minimum active term permitted under the applicable presumptive range.7
This appeal followed.
6
See AS 12.55.175(b); Garner v. State, 266 P.3d 1045, 1047-48 (Alaska App. 2011).
7
AS 12.55.125(i)(3)(A).
–7– 2683
The non-statutory mitigating factor of exemplary post-offense conduct
Created by the Alaska legislature in 1978, the statewide three-judge
sentencing panel serves as an important safety valve in Alaska’s presumptive sentencing
scheme.8 “A sentencing court must refer a case to the three-judge sentencing panel in
two circumstances: (1) if the judge concludes that a sentence within the presumptive
range would be manifestly unjust under the Chaney sentencing criteria; [or] (2) if the
defendant proves a non-statutory mitigating factor and the judge concludes that it would
be manifestly unjust to fail to consider that non-statutory factor in imposing the
defendant’s sentence.”9
Extraordinary potential for rehabilitation is a commonly asserted non-
statutory mitigating factor.10 A defendant has established this non-statutory mitigator “if
the court is satisfied, after reviewing the totality of the circumstances, that [the
defendant] can adequately be treated in the community and need not be incarcerated for
the full presumptive term in order to prevent future criminal activity.”11
8
See SLA1978, ch. 166, § 12 (creating the three-judge sentencing panel); Nell v. State,
642 P.2d 1361, 1370 (Alaska App. 1982) (upholding Alaska’s presumptive sentencing
scheme as constitutional in part because of the existence of the three-judge panel, which has
“broad sentencing discretion under AS 12.55.175 if it finds that a presumptive sentence
would result in ‘manifest injustice’”); see also Letter of Intent for Senate Bill 218, 2006
Senate Journal 2212 (emphasizing the importance of the three-judge panel as a “safety net”
for sex offender cases that are “exceptional” or that “cr[y] out for mercy”).
9
Daniels v. State, 339 P.3d 1027, 1030 (Alaska App. 2014).
10
See, e.g., O’Connor v. State, 444 P.3d226,232-35 (Alaska App. 2019); Beltz v. State,
980 P.2d 474, 481 (Alaska App. 1999); Lepley v. State, 807 P.2d 1095, 1099-1101 (Alaska
App. 1991); Kirby v. State, 748 P.2d 757, 766 (Alaska App. 1987).
11
Kirby, 748 P.2d at 766; see also O’Connor, 444 P.3d at 234 (“[A] sentencing judge
. . . must have articulable reasons, based on the evidentiary record, for concluding that the
(continued...)
–8– 2683
A closely related non-statutory mitigating factor is exemplary post-offense
conduct.12 This non-statutory mitigator was first recognized in State v. McKinney, a
sexual abuse case in which the non-statutory mitigator of extraordinary potential for
rehabilitation was statutorily barred because of an aggravator the sentencing judge had
found.13 In McKinney, we acknowledged that there was some overlap between
extraordinary potential for rehabilitation and exemplary post-offense conduct, but we
distinguished the non-statutory mitigating factor of exemplary post-offense conduct
based on its “significant potential to ameliorate the impact of [the offense] on [the victim]
and to enhance [the victim’s] prospects for emotional recovery.”14
McKinney involved a father who sexually abused his daughter. When
confronted by his wife, McKinney admitted the abuse, and the family made a collective
decision to seek counseling and report the abuse to law enforcement. McKinney made
a full confession to state troopers, and he began sex-offender counseling prior to
11
(...continued)
defendant can be rehabilitated earlier than the minimum term of imprisonment prescribed by
the applicable presumptive sentencing range — even though these articulable reasons may
not precisely identify the ultimate causes of the defendant’s criminal behavior.” (citing
Lepley, 807 P.2d at 1095)).
12
See State v. McKinney, 946 P.2d 456, 457 (Alaska App. 1997) (approving of the
sentencing judge’s conclusion that society should value the “beneficial results” of a
defendant’s responsible post-offense behavior — conduct that “would foster a victim’s
recovery”).
13
Id. at 458; see AS 12.55.165(b) (explaining that the court “may not refer a case to a
three-judge panel based on the defendant’s potential for rehabilitation if the court finds that
a factor in aggravation set out in AS12.55.155(c)(2),(8), (10), (12), (15), (17), (18)(B), (20),
(21), or (28) is present”).
14
McKinney, 946 P.2d at 458; see also Daniels, 339 P.3d at 1031-32 (acknowledging
the overlap between the two non-statutory mitigating factors of extraordinary potential for
rehabilitation and exemplary post-offense conduct).
–9– 2683
sentencing. Despite the seriousness of the charges, the family — including the victim
— desired reunification. The family counselor thought reunification was a workable
option and urged the sentencing judge to promote it as soon as possible.15
The sentencing judge concluded that “manifest injustice would result from
her inability to consider a non-statutory mitigating factor — exemplary post-disclosure
conduct.”16 As the judge explained:
[I]n the instance before the court, the offender’s post-crime
conduct legitimately sets him apart from other offenders who
commit the same offense. Society should value actions
which help a victim of intra-family abuse to recover from the
devastation of sexual abuse.[17]
The judge then described the type of post-crime conduct that could qualify as exemplary
in these situations:
There are things which will help a victim’s recovery: an
offender publicly and privately accepting responsibility for
the conduct; an offender assuming blame and communicating
the blamelessness of the victim; and support from the
non-offending parent (which is more forthcoming when the
offending parent accepts responsibility and does not
minimize [their] conduct or blame the victim).[18]
But as the judge recognized, “the current sentencing scheme precludes the court’s
consideration of these factors.”19 Instead, “[i]t treats an offender who engages in further
post-disclosure conduct which hurts a victim in the same way that it treats an offender
15
McKinney, 946 P.2d at 457.
16
Id.17
Id.18
Id.19
Id.– 10 – 2683
who behaves responsibly post-disclosure to help a victim’s recovery.”20 Because the
judge found that it was manifestly unjust to sentence McKinney without taking into
consideration his exemplary post-offense conduct, she referred his case to the three-judge
panel.21
The three-judge panel agreed with the sentencing judge’s analysis and
sentenced McKinney to a non-presumptive term of 8 years, thereby making McKinney
eligible for discretionary parole after he completed sex offender treatment in prison.22
The State appealed, and we affirmed the sentence on appeal.23
The current case
Whether a mitigating factor exists is a mixed question of law and fact.24 We
review factual findings under the clearly erroneous standard, affirming the lower court’s
findings unless we are left with a definite and firm conviction that a mistake has been
20
Id.21
Id.22
Id.; see Luckart v. State, 314 P.3d 1226, 1238 (Alaska App. 2013) (holding that
“AS 12.55.175(c) gives the three-judge panel the authority to expand a defendant’s eligibility
for discretionaryparole unless that authority is restricted by some other statutory provision”);
cf. AS 33.16.090(a)(1) (making a defendant convicted of second-degree sexual abuse of a
minor ineligible for discretionary parole unless it has been “allowed by the three-judge panel
under AS 12.55.175”).
23
McKinney, 946 P.2d at 457.
24
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
– 11 – 2683
made.25 We review the legal determination of whether those facts establish the
mitigating factor de novo.26
Here, the sentencing judge found that Olmstead had established the non-
statutory mitigating factor of exemplary post-offense conduct based on Olmstead’s
“general course of post-offense conduct,” which the court found was “similar in nature
to that of the [d]efendant in McKinney and was beneficialto the victim in the sense found
to be pertinent in McKinney.” This course of conduct included: promptly confessing
and apologizing, agreeing to seek counseling, cooperating with the police, pleading
guilty, and “consistently and continually” accepting responsibility for his conduct and
not blaming the victims.
The three-judge panel did not disagree with any of these findings. Instead,
the three-judge panel focused on other facts that it believed precluded a finding of
exemplary post-offense conduct. These facts were Olmstead’s references to the sexual
abuse as a “game” that went “too far,” which the panel viewed as “minimizing” his
conduct; Olmstead’s failure to engage in sex offender treatment; and the current
estrangement between the victims’ family and the extended family.
On appeal, Olmstead’s appellate attorney challenges these reasons for
rejecting the non-statutory mitigator. First, the attorney disputes that Olmstead
“minimized” his conduct. The attorney points to multiple places in the record where
Olmstead acknowledged the seriousness of his conduct, and the attorney also points to
the sentencing judge’s express finding that Olmstead “consistently and continually”
accepted responsibility for his conduct and did not blame the victims.
25
Id.; see also Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011).
26
Michael, 115 P.3d at 519.
– 12 – 2683
Next, the attorney disputes that Olmstead failed to engage in sex offender
treatment. The attorney asserts that the pastoral counseling that Olmstead received
constituted a “culturally meaningful response to his situation” and was “the functional
equivalent of a secular defendant undergoing formal treatment with a licensed sex-
offender treatment program.” The attorney also argues that sex offender treatment is
expensive and the record suggests that Olmstead was unable to afford such treatment.
Lastly, the attorney argues that the current estrangement should not be held
against Olmstead. The attorney argues specifically that the exemplary post-offense
conduct non-statutory mitigator should not be limited to only those defendants who
achieve family reunification because, in some cases, not reconciling may be what the
victim wants.
Some of these arguments are well-taken. In Auer v. State, an unpublished
case, we affirmed the sentencing judge’s finding of no exemplary post-offense conduct
because the record showed that the defendant deflected blame onto the child victim,
asserting that the child “came onto him” and so he “gave in to her flirting.”27 The record
also showed the defendant “did not undertake any exceptional efforts to assume
responsibility or assist the victim.”28
Here, in contrast, the record shows that Olmstead has consistently accepted
responsibility for his conduct and has not deflected blame onto the victims. The record
also shows that Olmstead has repeatedly acted in a manner intended to reduce the
secondary trauma to his niece and nephew that a more extensive criminal investigation
and prosecution would likely have caused.
27
Auer v. State, 2006 WL 3691690, at *1-2 (Alaska App. Dec. 13, 2006) (unpublished).
28
Id. at *2.
– 13 – 2683
We also agree with Olmstead’s appellate attorney that the current
estrangement between the victims’ family and the extended family should not preclude
a finding of exemplary post-offense conduct in this case. As the sentencing judge found,
Olmstead’s post-offense conduct did not contribute to the estrangement, which seems to
have been caused by other family members. We also do not believe that the exemplary
post-offense conduct non-statutory mitigator should be reserved only for those cases
where family reunification is the goal, because some victims and their families may not
want reunification. Instead, the critical question should be whether the defendant’s
conduct post-offense had “significant potential to ameliorate the impact of the sexual
abuse on [the victims] and to enhance [their] prospects for emotional recovery.”29 We
agree with the sentencing judge that Olmstead’s post-offense conduct qualified as
exemplary conduct in this regard.
Lastly, we agree with Olmstead’s attorney that Olmstead’s mental health
assessment and pastoral counseling are additional factors to be weighed in favor of
finding exemplary post-offense conduct. We do not agree, however, that the pastoral
counseling was the “functional equivalent” of sex offender treatment. Although there
may be circumstances in which pastoral counseling is as effective as sex offender
treatment, there is little evidence of that in this case. To the contrary, Olmstead’s use of
the word “game” and his insistence that his conduct was not sexual suggests that he
currently lacks insight into his criminal behavior. (However, unlike the three-judge
panel, we do not find this lack of insight surprising given Olmstead’s young age, his
sheltered upbringing, and the relative speed with which this case resolved.)
29
State v. McKinney, 946 P.2d 456, 458 (Alaska App. 1997); see also Auer, 2006 WL
3691690, at *2 (affirming the superior court’s decisionnot to refer the case to the three-judge
panel because the defendant “attempted to deflect some blame onto the victim” and “did not
undertake any exceptional efforts to assume responsibility or assist the victim”).
– 14 – 2683
It is not clear from the record why Olmstead did not provide a sex offender
risk assessment. It is possible money was the problem, as the appellate attorney
suggests, or there may be some other explanation.30 In any case, we do not agree with
the three-judge panel’s conclusion that the absence of a sexoffender risk assessment was
fatal to Olmstead’s claim of exemplary post-offense conduct in the same way that it
appears to have been fatal to his claim of extraordinary potential for rehabilitation.31 The
two non-statutory mitigators — although overlapping in many ways — target different
public policy concerns.
In rejecting the non-statutory mitigating factor of exemplary post-offense
conduct, the three-judge panel appeared to focus on the ways in which Olmstead’s post-
offense conduct was not necessarily perfect. But there is almost always something more
that a defendant could do, and if “exemplary” is interpreted to mean “perfect,” then there
will always be something that will prevent the courts from finding this non-statutory
mitigating factor. “Exemplary” can also mean “serving as a model,” “deserving
imitation,” or “commendable.”32 The record here shows that Olmstead’s post-offense
conduct was commendable and deserving of imitation, and a model for other sex
30
We note that Olmstead is indigent and was represented by public counsel. However,
typically the public agency representing an indigent defendant will pay the costs of a sex
offender risk assessment.
31
Compare Kirby v. State, 748 P.2d757, 767 (Alaska App. 1987) (finding extraordinary
potential for rehabilitation where defendant presented expert psychological evidence at
sentencing), with Lepley v. State, 807 P.2d at 1095, 1100 (Alaska App. 1991) (finding no
extraordinary potential for rehabilitation “given the lack of any psychological evidence
concerning the etiology of [the defendant’s] problems or the chances for their successful
treatment”).
32
Exemplary, WEBSTER’S II NEW COLLEGE DICTIONARY (3d ed. 2005).
– 15 – 2683
offenders, who generally demonstrate little concern for the well-being of their victims.
In sum, we agree with the sentencing judge that the non-statutory mitigating
factor of exemplary post-offense conduct was established in this case, and we conclude
that the three-judge panel erred when it rejected this non-statutory mitigator.
Accordingly, we vacate Olmstead’s sentence and remand this case to the three-judge
panel for reconsideration of Olmstead’s sentence in light of the non-statutory mitigator.
In deciding what effect, if any, the non-statutory mitigating factor should have on
Olmstead’s sentence, the three-judge panel should consider whether the sentence should
be reduced or whether Olmstead should be made eligible for discretionary parole or
some combination of the two. The three-judge panel may also consider the benefits that
Olmstead has already received by virtue of the plea agreement.
On remand, Olmstead is permitted to supplement the record with any
additional information relevant to his sentencing, including any sex offender risk
assessment that he may have completed in the interim.
Conclusion
The judgment of the superior court is VACATED and this case is
REMANDED to the statewide three-judge sentencing panel for proceedings consistent
with the guidance provided here.
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