Opinion
Court of Appeals No. A-10289 Trial Court No. 3PA-01-2455 CrNo. 5888
10-03-2012
KELLY R. CARR, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Kelly R. Carr, in propria persona, Seward, for the Appellant. Trina Sears, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge.
Appearances: Kelly R. Carr, in propria persona, Seward, for the Appellant. Trina Sears, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MANNHEIMER, Judge.
This case is before us for a third time. As explained in our first decision, Carr v. State (Carr I), Alaska App. Memorandum Opinion No. 5209 (April 25, 2007), a jury convicted Kelly R. Carr of two counts of first-degree sexual abuse of a minor (for engaging in acts of sexual penetration with his four-year-old niece), two counts of second-degree sexual abuse of a minor (for engaging in acts of sexual contact with his pre-teenage daughter), one count of exploitation of a minor (for videotaping one of these acts of abuse), and five counts of possessing child pornography.
During Carr's sentencing proceedings, the superior court initially ruled that, under the double jeopardy rule announced by our supreme court in Whitton v. State, 479 P.2d 302 (Alaska 1970), Carr's two counts of first-degree sexual abuse (Counts 1 and 2) should be merged, and all five of Carr's child pornography counts (Counts 6 through 10) should also be merged. However, the superior court later reversed these rulings, reinstated all of the separate counts, and imposed sentence on all these counts.
In his direct appeal to this Court (the appeal that led to our decision in Carr I), Carr argued that once the superior court ordered the merger of these various counts, the superior court had no authority to "un-merge" them, and that the reinstatement of these counts violated the constitutional prohibition against double jeopardy. We rejected this argument: We held that the superior court was wrong to merge the counts in the first place, and so we upheld Carr's separate convictions and sentences on these counts. Carr I, slip opinion at pages 2 & 11-13.
However, we concluded that the superior court had committed error during Carr's sentencing by wrongfully relying on aggravating factor AS 12.55.155(c)(18)(B) (history of sexual offenses). The superior court ruled that Carr's history of sexual offenses was proved by the fact that Carr had been convicted of, and was being sentenced for, several counts of sexual abuse in this case. We concluded that this was a violation of the rule announced in Juneby v. State, 641 P.2d 823, 842 (Alaska App. 1982) — the rule that an aggravator can not be based on offenses for which the defendant is being separately sentenced. Carr I at 2-3, 14-15. We therefore directed the superior court to re-sentence Carr. Carr I at 3, 15.
At Carr's original sentencing, the superior court had imposed a composite sentence of 14 years to serve (29 years with 15 years suspended). Carr I at 7. At the re sentencing that was conducted pursuant to our remand, the superior court adjusted Carr's sentences — reducing some of them, but increasing others — so as to achieve the same composite sentence without exceeding the prescribed presumptive term of imprisonment for any individual count. See Carr v. State (Carr II), Alaska App. Memorandum Opinion No. 5684, at page 2 (March 2, 2011).
Following this re-sentencing, Carr renewed his appeal, arguing that this composite sentence was excessive. We held that Carr did not have the right to raise this argument in his second appeal because he had failed to raise an excessive sentence argument in his first appeal:
With respect to the argument that Carr's composite sentence is excessive, Carr is no longer entitled to pursue this claim at this point in the proceedings. Carr received the same composite sentence at his original sentencing. Thus, Carr's current claim that this composite sentence is excessive is a claim that Carr could have raised in his first appeal. He did not do so. See "Opening Brief of Appellant" in Carr v. State, Court of Appeals File No. [A-]8876. Accordingly, Carr is barred from raising this claim now. Hurd v. State, 107 P.3d 314, 327-29 (Alaska App. 2005).Carr II at 2-3.
In this same second appeal, Carr also renewed his argument that, under Whitton, the superior court should have merged Counts 1 and 2 (the two convictions for first-degree sexual abuse) and Counts 6 through 10 (the five convictions for possessing child pornography). In Carr II, we noted that we had rejected these same claims in Carr I, and we adhered to our earlier ruling. Carr II at 3.
Following our decision in Carr II, Carr filed a petition for hearing in the supreme court, asking the supreme court to review our decision.
See Carr v. State, Supreme Court File No. S-14239.
In his petition, Carr renewed his argument that Counts 1-2 and Counts 6-10 should have been merged, and that it violated the double jeopardy clause for Carr to receive separate convictions and sentences on all these counts.
"Petition for Hearing" in Supreme Court File No. S-14239, pages 5-9.
Carr also argued that he should be allowed to attack his most recent sentence on the ground that it was excessive. He contended that, even though the composite sentence was the same as before, the new sentence was based on new findings by the superior court, and thus Carr had never previously had a fair opportunity to challenge that sentence.
"Petition for Hearing", pages 9-10.
The supreme court granted Carr's petition in part: The supreme court agreed that Carr "did not have [a fair] opportunity to seek appellate review" of the sentence imposed on him at the re-sentencing. "Therefore," the supreme court ordered, "the Court of Appeals is directed to address [Carr's] appellate point that the sentence imposed after remand was excessive."
See "Order" dated November 10, 2011 in Supreme Court File No. S-14239. .
However, the supreme court denied Carr's petition in all other respects. In other words, the supreme court declined to review our decision that Carr properly received separate convictions and sentences on Counts 1-2 and Counts 6-10.
Ibid.
Carr's case is now in front of us for a third time, pursuant to the supreme court's directive that Carr be allowed to challenge the sentence he received on remand (the sentence that the superior court imposed after we issued our decision in Carr I).
In his current brief to this Court, Carr renews his arguments that his convictions on Counts 1-2 and Counts 6-10 should be merged. In other words, Carr asks us to address his double jeopardy arguments for a third time, even though we rejected these claims in both Carr I and Carr II, and even though the supreme court denied Carr's petition for hearing based on these claims. At this point, Carr is no longer entitled to litigate these merger claims.
Carr also argues that the superior court violated Apprendi v. New Jersey and Blakely v. Washington by "finding ... a disputed fact" that affected his degree of punishment — to wit, finding that there was a sufficient break in time between Carr's first act of sexual penetration and his second act of sexual penetration to justify two separate convictions for first-degree sexual abuse.
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
This appears to be an elaboration of, or a variation on, Carr's double jeopardy argument that Counts 1 and 2 (the first-degree sexual abuse counts) should be merged. To the extent that Carr has previously raised this argument, it has already been rejected (twice). We expressly approved the superior court's fact-finding on this issue in Carr I:
Judge [Eric] Smith [initially] merged the [two] counts [of first-degree sexual abuse] because he initially accepted Carr's argument at the first sentencing [hearing] that merger was required under Whitton v. State because the instances of sexual abuse "happened very close in time." But at theCarr I at 12-13 (internal quotations omitted).
second [sentencing] hearing, Judge Smith concluded that merger was not required under Whitton. He noted that the incidents leading to the two counts of sexual abuse of M.H. were violations of the same statute, involved the same victim, and occurred on the same day. However, Judge Smith reviewed the evidence presented at trial and found that there was a sufficient break between the separate incidents and that merger was not required. The evidence showed that Carr first touched M.H.'s genitals while she was positioned in his lift. He then repositioned M.H. on the bed, set up his video camera to record, and instructed M.H. to open her shorts and performed oral sex on her.
In Williams v. State, we held that connected acts of sexual abuse are not considered part of the same offense for purposes of double jeopardy if "there was a sufficient break in time and circumstance between each act of sexual contact." The evidence in Carr's case supports Judge Smith's finding that there was a sufficient break between the separately charged acts of sexual abuse to uphold separate convictions under the Williams test. Under those facts, the counts were not subject to merger.
928 P.2d 600 (Alaska App. 1996).
Id. at 604.
If Carr believed that Judge Smith's fact-finding on this issue was unlawful, and that Judge Smith violated Apprendi and Blakely by making this finding, Carr could have raised this claim in either Carr I or Carr II. Moreover, Carr did expressly raise this claim in his petition for hearing to the supreme court. He argued that hearing should be granted because:
the Court of Appeals failed to consider ... whether ... Judge Smith committed plain error by usurping the authority of the jury as the trier of fact, when he alone made a finding of a sufficient break in time and circumstance that would preclude the merger of the two [first-degree sexual abuse] convictions. Although a sentencing judge is authorized to merge two or more convictions to prevent double jeopardy, [the judge] cannot make a finding of a disputed material fact that exposes a defendant to a greater sentence than one based solely on the verdict of the jury. See Douglas v. State, 215 P.3d 357, 360, 365 (Alaska App. 2009), and Blakely v. Washington, 542 U.S. 296 (2004). Such a finding lies ... within the exclusive province of the jury. When Judge Smith took it upon himself to make such a finding, he violated Carr's right to trial by jury and due process of law, thereby committing plain error."Petition for Hearing" at page 7.
As we have already noted, the supreme court denied hearing on this claim. Our previous decision on this issue therefore became final.
See Appellate Rules 507(b) and 512(a)(2).
Moreover, to the extent that Carr is presenting a new argument as to why these two counts should merge, he is barred from doing so at this stage of the appeal. Hurd v. State, 107 P.3d 314, 327-29 (Alaska App. 2005).
This leaves Carr's arguments that his composite sentence is excessive.
At the time of Carr's offenses, his most serious offense — first-degree sexual abuse of a minor — carried a maximum sentence of 30 years' imprisonment and, for first felony offenders, a presumptive term of 8 years. See AS 12.55.125(i) and (as of 2000). As noted above, Carr received a composite sentence of 29 years with 15 years suspended, or 14 years to serve.
When Judge Smith sentenced Carr, he relied on the 10-15 year benchmark sentencing range that this Court established in State v. Andrews, 707 P.2d 900, 913 (Alaska App. 1985). In Andrews, this Court concluded that a 10-15 year benchmark sentencing range was appropriate for "aggravated" cases of first-degree sexual abuse of a minor. We added that this benchmark sentencing range applied "to all aggravated cases, whether [the] aggravation is found ... because of: (1) multiple victims; (2) multiple assaults on a single victim; or (3) serious injuries to one or more victims." Id., 707 P.2d at 913.
Carr's sentence of 14 years to serve appears to fall within this benchmark sentencing range. However, Carr argues that the Andrews benchmark range of 10 to 15 years refers to a defendant's total sentence (including suspended prison time), and not just a defendant's active term of imprisonment ("time to serve").
In support of this contention, Carr relies on a single sentence from our decision in Haire v. State, 877 P.2d 1302 (Alaska App. 1994), where we referred to the Andrews benchmark as placing a limit on a defendant's "total sentence". Id. at 1305. But Carr has taken this sentence out of context.
The problem presented in Haire was that the superior court wrongly concluded that the Andrews benchmark limited the individual sentences that could be imposed for each of Haire's sexual offenses, but that the Andrews benchmark did not limit Haire's composite sentence — thus allowing the court to impose consecutive sentences that exceeded the Andrews benchmark. (The superior court's mistaken analysis of this point of law is quoted in Haire, 877 P.2d at 1305.)
In our decision in Haire, this Court explained that the Andrews benchmark applied to a defendant's composite term of imprisonment — the total term of imprisonment that the defendant received for all counts. Here is our discussion of this point — with the sentence that Carr now relies on presented in italics:
[T]he [sentencing] court was mistaken in its apparent belief that consecutive terms of up to fifteen years per count ... would fall within the Andrews benchmark range. The benchmark specified in Andrews was not meant to apply on a count-by-count basis. In Andrews, this court recognized a benchmark sentencing range of ten to fifteen years to serve for first offenders convicted of aggravated instances of child sexual abuse. We defined an "aggravated" case as one in which the defendant had abused multiple victims, had committed multiple assaults on a single victim, or had inflicted serious injury to one or more victims. Andrews, 707 P.2d at 913. The Andrews benchmark was thus meant to indicate the appropriate range for the total sentence that would ordinarily be justified for a first offender convicted in an aggravated case of first-degree sexual assault or abuse. Here, although the sentencing court evidently believed that the sentences it imposed fell within the Andrews benchmark range, Haire's composite term of twenty-five years with two years suspended significantly exceeds that range.Haire, 877 P.2d at 1305-06.
In other words, when this Court said in Haire that the Andrews benchmark limited a defendant's "total sentence", we were explaining that Haire's sentencing judge was wrong in thinking that Andrews only limited a defendant's individual sentences on separate counts of sexual abuse, and that the Andrews benchmark did not limit a defendant's composite sentence.
In fact, attentive readers will already have noticed that, just two sentences before the italicized sentence that Carr relies on, this Court expressly described the Andrews benchmark as limiting a defendant's time to serve: "In Andrews, this court recognized a benchmark sentencing range of ten to fifteen years to serve for first offenders convicted of aggravated instances of child sexual abuse." Id. at 1305.
Indeed, this Court has consistently interpreted and applied the Andrews benchmark as defining the normal limits of a defendant's active term of imprisonment, not the defendant's total sentence.
In Williams v. State, 800 P.2d 955, 959 n. 4 (Alaska App. 1990), we likewise referred to our decision in Andrews as establishing the rule "that, even in aggravated cases, first felony offenders convicted of sexual assault or sexual abuse should ordinarily receive a composite sentence of no more than ten to fifteen years of unsuspended incarceration."
In Sharp v. State, 837 P.2d 718 (Alaska App. 1992), the defendant was sentenced to a composite term of 32 years with 16 years suspended. Id. at 725. We declared that "Sharp's sexual abuse sentences total 16 years to serve, slightly more than the upper limit of the benchmark range announced in Andrews." Id. at 726.
In Williams v. State, 859 P.2d 720 (Alaska App. 1993), the defendant received a composite sentence of 20 years with 12 years suspended. We declared that, "[i]n terms of unsuspended time, Williams' sentence is well within the benchmark range established in State v. Andrews[.]" Id. at 723.
And in Schumacher v. State, 11 P.3d 397 (Alaska App. 2000), the defendant received a composite sentence of 19 years with 4 years suspended. We declared that "Schumacher's 15-year term falls at the upper end of the bench mark for a first offender convicted of aggravated conduct." Id. at 401.
Accordingly, we re-affirm that the Andrews benchmark limits a defendant's active term of imprisonment — the defendant's "time to serve". Carr's composite sentence of 14 years to serve falls within the Andrews benchmark sentencing range for aggravated cases of sexual abuse of a minor.
The remaining question is whether Carr's case is an aggravated instance of sexual abuse of a minor for purposes of Andrews.
Carr was convicted of twice sexually penetrating his four-year-old niece. Carr videotaped one of these acts of abuse (which gave rise to his conviction for exploitation of a minor). Carr's convictions for second-degree sexual abuse involved a different victim, his daughter.
In addition, Carr possessed multiple pornographic photos of girls between the ages of 3 and 10.
Judge Smith concluded that Carr's behavior was "pretty predatory". The judge also concluded that Carr's two acts of first-degree sexual abuse of a minor were relatively serious, given that Carr's victim was only 4 years old. (The offense of first-degree sexual abuse of a minor applies to acts of sexual penetration committed with any minor under the age of 13.)
See AS 11.41.434(a)(1).
Given this record, we conclude that Judge Smith was not clearly mistaken when he ruled that Carr's conduct, taken as a whole, was "aggravated" for purposes of the Andrews benchmark. Carr committed multiple instances of sexual abuse. His acts of sexual abuse involved two victims. And he was also being sentenced for possessing quantities of child pornography. Thus, Carr's composite sentence of 14 years to serve is justified under Andrews.
Conclusion
The judgement of the superior court is AFFIRMED.