State v. Clark

OPINION

COATS, Judge.

Steven T. Clark was convicted, based upon his plea of no contest, of sexual abuse of a minor in the second degree, a class B felony. AS 11.41.436(a)(2). Superior Court Judge Thomas M. Jahnke sentenced Clark, a first felony offender, to three years of imprisonment with two years and six months suspended. He placed Clark on probation for a period of five years following his release from confinement. The state appeals Clark’s sentence, arguing that it is too lenient. We affirm.

In a sentence appeal brought by the state on the ground that the sentence is too lenient, we are not authorized to increase the sentence but may express our approval or disapproval. AS 12.55.120(b); State v. Doe, 647 P.2d 1107, 1108 n. 5 (Alaska App.1982). The standard we apply in reviewing any sentence, including whether the sentence is too lenient, is whether the sentence is clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

In June of 1988, V.W., a five-year-old boy, told his father that Clark had sexually molested him. When the police investigated the case, Clark admitted to an officer that in the winter of 1987, while he was babysitting V.W., he had performed fellatio on V.W. Clark told the officer that he had been high on marijuana at the time. Clark also admitted that earlier the same evening he had fondled V.W.’s penis before V.W. took a bath. Clark was originally indicted for sexual abuse of a minor in the first degree, an unclassified felony. However, he ultimately entered a plea to sexual abuse of a minor in the second degree.

At the time of his offense, Clark was eighteen years old. He had no prior juvenile or adult record except for several offenses for driving without a license. The probation officer who wrote the presen-tence report concluded that “Mr. Clark is functioning at a socially, emotionally and sexually retarded level and is in need of considerable amount[s] of psychological/psychiatric evaluations, counseling and treatment.” The probation officer concluded that Clark did not appear to be a threat to other people and that Clark had high potential for rehabilitation. The probation officer recommended a sentence of three years with all three years suspended. The probation officer also recommended that Judge Jahnke order Clark to serve time in a halfway house which would emphasize rehabilitation and treatment. The record also reflects that Clark has a drug abuse problem. However, at the time of sentencing, Clark had been attending Alcoholics Anonymous and Narcotics Anonymous meetings regularly for a period of one year.

In sentencing Clark, Judge Jahnke expressed reservations about Clark’s potential for rehabilitation. In drawing this conclusion, Judge Jahnke emphasized the psychological report by psychologist Robert Hartman. Dr. Hartman’s report indicates that the prognosis for Clark in psychological treatment is guarded. Dr. Hartman also stressed Clark’s tendency for substance abuse. However, Dr. Hartman also stated “I strongly recommend this individual not be given a jail or prison sentence and feel that placement in a treatment program is the preferred course of action.”

In his sentencing remarks, Judge Jahnke emphasized individual deterrence, general deterrence, and community condemnation. He imposed the six months of imprisonment to further these goals.

In State v. Jackson, 776 P.2d 320, 326-27 (Alaska App.1989) (footnotes and citations omitted), we set out the following framework for sentencing first offenders convicted of class B felonies:

1. A typical offender committing a typical or moderately aggravated offense should receive an unsuspended term of a year or more to serve. The upper limit in such cases should be four years, reflecting our decision in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981). In Austin, we indicated that first offenders should normally receive a sentence more lenient than the presumptive term for a second felony offender.

2. For an offense that is exceptionally aggravated — one that involves the existence of significant statutorily specified aggravating factors or other extraordinarily aggravated circumstances — a term of up to six years of unsuspended incarceration, the presumptive term for a third felony offender, would be justified.

3. For a case that is less serious than the norm for the offense, either because it involves mitigated conduct or an offender whose background indicates particularly favorable prospects for rehabilitation, a nonprobationary sentence below the one-year to four-year range for typical offenses will be appropriate. By “nonprobationary,” we mean a sentence involving at least ninety days of unsus-pended incarceration — in other words, a term that exceeds the sixty-day limit of a sentence involving “shock probation.” In such cases, sentencing courts have broad discretion to require that any period of incarceration be served as a condition of a suspended imposition of sentence.

4. A probationary sentence — a term involving less than ninety days of unsus-pended incarceration — should be reserved for cases that are significantly mitigated in terms of both the offender and the offense. When an offense involves mitigated conduct but is committed by an offender who does not show unusually good prospects for rehabilitation, the imposition of a nonprobationary sentence will further the sentencing goals of both community condemnation and personal deterrence. When an offender who has good prospects for rehabilitation commits a crime involving conduct typical for the offense, the seriousness of the conduct and the resulting need to express community condemnation will militate in favor of a nonproba-tionary sentence. Thus, a probationary sentence will be appropriate only when an offender’s conduct is significantly less serious than typical conduct for the offense and only when the offender’s prospects for rehabilitation are shown to be significantly better than the typical first offender’s conduct.

Although Judge Jahnke indicated he was not placing primary emphasis on rehabilitation, an objective view of the sentence suggests that he gave a great deal of consideration to this factor. We believe this was appropriate. Clark was an eighteen-year-old first offender without any serious prior criminal record. It was proper for Judge Jahnke to give these factors great weight. We have formerly held that in sentencing an offender, the court should give primary weight to the offender’s prior criminal convictions and must not place inordinate emphasis on predictions of possible' future misconduct. Maal v. State, 670 P.2d 708, 711-12 (Alaska App.1983); Skrepich v. State, 740 P.2d 950, 954-55 (Alaska App.1987). Even Dr. Hartman’s report, which was guarded about Clark’s prospects for rehabilitation, recommended that Clark be placed in a treatment program.

In evaluating Clark’s sentence, it is important to consider it in its entirety. Judge Jahnke did not merely impose a sentence of three years with two and one-half years suspended. He also placed Clark on probation for five years with extremely onerous conditions designed to ensure Clark’s rehabilitation and to protect the public. Judge Jahnke ordered that following Clark’s release from prison, Clark was to enter and successfully complete the thirty-day Alcohol Treatment Service program in Sitka. Apparently this is an in-patient program. Following his completion of the Alcoholic Treatment Services program, Judge Jahnke ordered that Clark go to the Aurora’s Watch program for a minimum of 90 days. This is apparently a halfway house which is designed to follow up the treatment at the Alcohol Treatment Services program. Besides the usual probation conditions, Clark is to complete all counseling and treatment programs. In addition, he is not to consume alcoholic beverages, have them in his possession or to enter places where alcoholic beverages are served or sold.

When Clark’s sentence is considered in total, it approximates the low end of the scale for a typical or moderately aggravated offense which, according to the Jackson framework, should receive an unsus-pended term of a year or more to serve. As a practical matter, Judge Jahnke could properly have classified Clark within the third category of offenders which we set forth in Jackson, i.e., a case which is less serious because the offender’s background indicates particularly favorable prospects for rehabilitation. Although there are reasons to be guarded about Clark’s prospects for rehabilitation, most of those reasons involve psychological predictions about which the court has a right to be wary. The objective facts are that Clark is an eighteen-year-old first offender. The court was certainly entitled to give Clark the benefit of the doubt and to emphasize Clark’s first offender status in imposing sentence. The sentence which the court imposed is carefully designed to address Clark’s rehabilitative needs while the conditions of probation and the length of probation ensure the protection of the public. We conclude that the sentence which Judge Jahnke imposed was not clearly mistaken.

The sentence is AFFIRMED.