Peruski v. State , 1985 Alas. App. LEXIS 403 ( 1985 )

SINGLETON, Judge,

concurring.

I join in Chief Judge Bryner’s decision to remand this case for resentencing. Our decision today makes clear what has been foreshadowed in our past decisions: a trial court has broad discretion to impose consecutive or concurrent sentences on a defendant who is simultaneously sentenced for independent crimes, so long as the total sentence imposed does not exceed the maximum sentence for the most serious offense. See, e.g., Lacquement v. State, 644 P.2d 856 (Alaska App.1982). The maximum sentence is reserved for the most serious offender. An extensive criminal record, or the number of separate crimes for which the defendant is convicted, are major factors in determining whether one is, or is not, a worst offender. Cf. Saganna v. State, 594 P.2d 69, 70 (Alaska 1979).

A sentence in excess of the maximum term for the most serious offense, however, requires more than a bald finding by the sentencing court that the defendant is a “worst offender.” In addition, the court must satisfy the requirements of Mutschler v. State, 560 P.2d 377 (Alaska 1977) and Lacquement. A Mutschler-Lacquement finding must be based on some evidence that the defendant cannot be deterred or rehabilitated by a total sentence, including consecutive increments, equal to or less than the maximum sentence for his most serious offense. See State v. Graybill, 695 P.2d 725, 731 (Alaska 1985). Such a finding should not ordinarily be based solely on the trial judge’s perception of a need for the deterrence of other wrongdoers or the affirmation of community norms. Where the trial court makes a Mutschler-Lacquement finding, we will uphold it if it is supported by substantial evidence and is not clearly mistaken. Generally, such a finding will be based on “a striking pattern of recidivism” on the part of the defendant. Graybill, 695 P.2d at 731. Where the trial court fails to make a Mutschler-Lacquement finding, we will affirm the sentence only if we are able to conclude that the record conclusively establishes that the defendant cannot be deterred or rehabilitated by a sentence equal to or less than the maximum sentence for his most serious offense. See, e.g., Neal v. State, 628 P.2d 19, 21 (Alaska 1981). Here, Judge Cooke’s express finding that Peruski presented no risk of recidivism and could be rehabilitated or deterred by a sentence of one year or less absolutely precludes a sentence in excess of one year, the maximum penalty for the most serious offense for which Peruski was sentenced.