Garrison v. State , 1988 Alas. App. LEXIS 99 ( 1988 )

OPINION

COATS, Judge.

Michael D. Garrison was convicted, following a jury trial, of kidnapping, AS 11.-41.300(a)(1)(C), assault in the first degree, AS 11.41.200(a)(2), and sexual assault in the first degree, AS 11.41.410(a)(1). Superior Court Judge Henry C. Keene, Jr., sentenced Garrison to twelve years for the kidnapping, seven years for the first-degree assault, and ten years for the first-degree sexual assault. Judge Keene imposed these sentences concurrently. Garrison thus received a total sentence of twelve years to serve. Garrison appeals his conviction and the state appeals Garrison’s sentence. We affirm Garrison’s conviction and his sentence.

CO-COUNSEL STATUS

At trial Garrison was represented by a public defender. Following jury voir dire Garrison asked to be able to participate as co-counsel in the trial. In making his application to Judge Keene, Garrison indicated that he wanted to make sure that all the issues that he wanted raised in the trial would be raised, and he also wanted the opportunity to cross-examine some of the witnesses. In ruling that Garrison could not act as co-counsel, Judge Keene stated that neither the United States Constitution nor the Alaska Statutes provided that a person had a right to both representation by an attorney and self-representation simultaneously. The judge pointed out that if Garrison were allowed to ask questions, he might be able to get his statements before the jury without being subject to cross-examination. He also indicated that, if Garrison had any problems with his public defender concerning trial strategy, he would allow Garrison to take up such matters outside of the presence of the jury.

On appeal Garrison argues that Judge Keene erred in denying his request to act as co-counsel. Garrison cites Cano v. Anchorage, 627 P.2d 660 (Alaska App.1981). In Cano, the defendant indicated on the day of trial that he wished to represent himself on charges of attempting to elude a police officer and reckless driving. Cano indicated that although he intended to conduct the trial himself, he wished to have his public defender available for consultative purposes. The trial judge indicated that Cano had to choose between representing himself or being represented by an attorney. Cano chose to represent himself. The trial judge allowed Cano’s public defender to sit in the back of the courtroom with the understanding that she would not participate in the proceedings, and that there would be no extra recesses so that Cano could consult with her. Cano was allowed to consult with counsel only during ordinary recesses.

On appeal, this court held that the trial judge had erred in not recognizing that he had discretion to allow hybrid representation. We stated: “In the exercise of sound legal discretion, a court must consider the alternatives available to it and choose among them. When the trial court fails to recognize the alternatives from which it may choose, it cannot be said that discretion was in fact exercised.” 627 P.2d at 663. Garrison argues that in his case, as in Cano, the trial judge did not exercise proper discretion because the court failed to consider the available alternatives.

We consider Cano to be distinguishable from the present case. In Cano, the defendant was acting as his own counsel, which he has a right to do. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975); McCracken v. State, 518 P.2d 85, 91 (Alaska 1974). When defendants choose to represent themselves, however, they are at a severe disadvantage because self-representation is usually disruptive of the proper function of the judicial process. See Burks v. State, 748 P.2d 1178, 1182-83 (Alaska App.1988) (Coats, J., dissenting). In Cano, we recognized the broad discretion which the trial court possesses to regulate trials and to control the conduct of counsel in the courtroom. 627 P.2d at 664. We could not see why, however, Cano should not have been allowed to consult with his attorney on a regular basis during the trial. Allowing Cano to have full access to counsel probably would have resulted in a more fair and orderly trial. We therefore reversed the trial court because it did not even consider this alternative.

We see Garrison’s case, however, as being very different from Cano. Unlike Cano, Garrison was not representing himself at trial. Garrison was represented by an attorney. See Ortberg v. State, 751 P.2d 1368, 1375 (Alaska App.1988). Therefore, Garrison was not engaged in an unequal contest at trial wherein he would be pitting himself against an attorney. Moreover, in Cano, there was every reason to believe that the trial would be better conducted if Cano had ready access to an attorney. The opposite is true, however, in Garrison’s case. Garrison’s participation as co-counsel would probably be somewhat disruptive. Judge Keene considered the reasons which Garrison gave for wanting to act as co-counsel, and he addressed Garrison’s concerns by making sure that Garrison knew that he would be able to consult fully with his attorney during trial.

A defendant has a constitutional right to counsel. U.S. Const. amend. VI; Alaska Const. art. 1, § 11. The right to self-representation is also constitutionally protected. U.S. Const. amend. VI; Alaska Const. art. 1, § 21. The right to participate as co-counsel or have hybrid representation, however, is not protected. “The trial court has broad discretion to deny hybrid representation or co-counsel status.” Ortberg, 751 P.2d at 1375. Accordingly, we conclude that the trial court did not err in denying co-counsel status in this case.¹

THE SENTENCE

We next address the state’s contention that Garrison’s sentence of twelve years’ imprisonment was too lenient. When the state appeals a sentence on the ground that it is too lenient, this court has jurisdiction to review the sentence pursuant to AS 22.07.020(b) and (d). If we find that the sentence is too lenient, we may disapprove of the sentence. This court has no authority, however, to increase a sentence appealed by the state on the ground that it is too lenient. The standard that we apply in determining whether a sentence is too lenient is the clearly mistaken standard.

The victim of Garrison’s crimes, C.D., was a young woman. According to C.D., Garrison offered her a ride in his pickup truck. C.D. declined and continued walking. Garrison, however, forced C.D. into the truck by pulling her hair. Garrison then slashed and stabbed C.D. with a knife, cutting her across the face and cutting her throat, back, and thigh. Garrison drove C.D. to a secluded area, where he sexually assaulted her.

Following the sexual assault, Garrison’s truck became stuck when he attempted to back away from the wooded area where he had parked. An- occupant of one of the homes across the street called the police and Garrison was arrested. C.D. was taken to the hospital.

At the hospital, the treating physician reported that C.D. had been stabbed in the thigh, which caused internal bleeding. C.D. had also been cut superficially three times on the right cheek, had a cut on the right shoulder blade, and had received a four-centimeter deep laceration to her neck. The throat wound was potentially life-threatening because the cut was very close to the jugular vein, the carotid arteries, and the trachea. All of the wounds resulted in scars that are permanent and disfiguring. At sentencing, C.D. testified that she had gone through severe emotional trauma as a result of the kidnapping and assault.

At trial, Garrison admitted assaulting C.D., but denied kidnapping or sexually assaulting her. According to Garrison, he had been drinking throughout the day and had taken three or four Dilaudids, a synthetic heroin-like narcotic. Garrison testified that C.D. asked him for a ride, and he allowed her to ride in his pickup. C.D. agreed to accompany him to drink alcohol and to smoke marijuana. Garrison testified that he got lost because of his intoxicated condition and eventually got stuck in the mud. Garrison got out of his truck to assess the situation, but when he returned, he could not find his money or marijuana. Assuming that C.D. had taken them, he became extremely angry and began stabbing her. Garrison claimed that, because of his alcohol and drug intoxication, he did not know what he was doing at the time.

At the time of this offense, Garrison was twenty-four years old. He had no significant prior record, although he did have a pending driving while intoxicated charge at the time of sentencing. Garrison also had a significant history of alcohol and drug abuse. He had been discharged from the military because of drug and alcohol use, and he had failed twice in drug and alcohol treatment programs.

In sentencing Garrison, Judge Keene indicated that he considered Garrison’s offenses to be extremely aggravated. He emphasized the brutality of the offense and the physical and psychological damage to the victim. In imposing the twelve-year term, Judge Keene indicated that the sentences were to be presumptive and that Garrison was not eligible for parole.

In arguing that the sentence which Judge Keene imposed for Garrison’s crimes was too lenient, the state has cited us to several cases in which Alaska appellate courts have found that more severe sentences, for arguably similar crimes, were not clearly mistaken. For instance, in Hintz v. State, 627 P.2d 207, 210-11 (Alaska 1981), Hintz kidnapped a woman as she was leaving a shopping center, drove her to an isolated area, and raped her at gunpoint. He then abandoned her on a deserted stretch of highway, with very little clothing, in minus thirteen-degree weather. Hintz was twenty-one years old at the time of the offense. His only prior offense had been a prior conviction for burglary. The trial judge sentenced Hintz to life imprisonment for kidnapping and to a consecutive twenty-year sentence for rape. Id. at 210. The supreme court, however, found this sentence to be clearly mistaken, and ordered the sentence reduced to a total of thirty years. Id. at 211.

In Davis v. State, 635 P.2d 481, 487-88 (Alaska App.1981), this court found that a sentence totalling twenty years for kidnapping and rape was not clearly mistaken. Davis was a young man with no prior criminal record and an exemplary military record. Davis abducted and forcibly raped M.M., a seventeen-year-old girl. Davis had a loaded pistol in the glove compartment of his truck at the time of the kidnapping and rape, but the weapon was not used or mentioned to the victim. Id. at 487. There was substantial evidence that Davis had attempted to sexually assault two other women on different occasions.

Hintz is distinguishable to some degree from Garrison’s case because Hintz had a prior burglary conviction. Davis, on the other hand, could be distinguished because of the evidence that Davis had engaged in similar behavior on other occasions. Yet, basically, these cases demonstrate that the appellate courts of this state have affirmed sentences significantly greater than the sentence which Garrison received. Therefore, it seems clear that this court would not have found a sentence of twenty years for Garrison’s offenses to be excessive.

It does not follow, however, that a sentence of twelve years is too lenient. Sentencing is primarily a trial court function. It is an individualized process, and appellate courts have traditionally deferred to the trial judge’s superior opportunity to evaluate the offender and the offense. Sentence review, therefore, is primarily a safety valve; it is an opportunity to correct sentences which deviate too far from the norm. This court disapproves a sentence only when it finds that the sentence is clearly mistaken. We have thus repeatedly pointed out that application of this standard results in a wide range of sentences which are within the trial court’s discretion. Covington v. State, 747 P.2d 550, 554 (Alaska App.1987); State v. Krieger, 731 P.2d 592 (Alaska App.1987);² Langton v. State, 662 P.2d 954, 962-63 (Alaska App.1983).

This court and the Alaska Supreme Court have frequently considered the ABA Standards for sentencing procedures which state that a sentence ought not to exceed ten years except in unusual cases, and that normally a sentence should not exceed five years. See III Standards for Criminal Justice § 18-2.1 and commentary at 52 (1982). This guideline is certainly an indicator that a sentence in excess of ten years is a severe sanction. Furthermore, in this case, Garrison’s parole eligibility was restricted. Thus, Judge Keene recognized the serious nature of Garrison’s offense, and the sentence imposed was sufficiently substantial to reflect community condemnation. In spite of the serious nature of Garrison’s offense and his guarded prospects for rehabilitation given his long-term drug abuse, this was Garrison’s first criminal offense. Accordingly, we conclude that the sentence was not clearly mistaken.

The conviction and sentence are AFFIRMED.

1 . Although we believe that the trial court could also have properly denied Garrison's request for co-counsel status had the motion been made well before trial, we note the timing of Garrison’s motion. The motion for co-counsel status was not made until after jury voir dire. The lateness of Garrison’s motion gave the trial court no time either to familiarize itself with the law in this area or to consider fully Garrison’s motion for co-counsel status. Thus, the timing of Garrison’s motion, as well as the merits, invited the somewhat summary response which the trial court was forced to render in the middle of trial.

2 . Krieger illustrates the sentencing ranges which the appellate courts of this state allow. A jury convicted Krieger of murder in the second degree. Krieger had no prior record. The trial judge sentenced Krieger to fifteen years with seven years suspended. The state appealed, arguing the sentence was too lenient. We held that a sentence of less than ten years’ incarceration was clearly mistaken. We indicated, however, that “a sentence more closely approximating the typical twenty- to thirty-year sentence for second-degree murder would have been preferable.” Id. at 596-97.