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stating that the (c) aggravator applies if the victim was "particularly vulnerable compared to the typical victim" of a crime, i.e. , "particularly vulnerable among the class of victims" of a certain crime
Summary of this case from Cunningham v. StateOpinion
Court of Appeals No. A-12811 No. 6760
01-23-2019
CLIFFORD K.I. LEE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Evan Chyun, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Jenna L. Gruenstein, Assistant District Attorney, Anchorage, and Jahna Lindemuth, 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. Trial Court No. 3AN-14-6876 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Paul E. Olson, Judge. Appearances: Evan Chyun, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Jenna L. Gruenstein, Assistant District Attorney, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge ALLARD.
Clifford K.I. Lee pleaded guilty to two consolidated counts of first-degree sexual assault for sexually assaulting four different women and attempting to sexually assault a fifth woman. As part of his plea agreement, Lee also admitted committing additional uncharged sexual assaults against three other women.
Lee's general pattern of conduct involved luring vulnerable — often homeless — women into his car with promises of a ride or food. Lee would then sexually assault his victims, threatening them with violence if they did not comply with his demands. Lee committed his sexual assaults over the thirteen-year period from 2001 to 2014, when he was finally identified, apprehended, and charged.
As part of his plea agreement, Lee stipulated that one of the two counts of first-degree sexual assault was subject to the "dangerous instrument" sentencing enhancement under AS 12.55.125(i)(1)(B). Lee also stipulated that both counts of sexual assault were subject to statutory aggravator AS 12.55.155(c)(10) — i.e., that his conduct was among the most serious within the definition of the crime.
Given these stipulations, Lee was subject to a maximum penalty of 99 years in prison on each count. Under the plea agreement, the State was also permitted to argue for additional aggravators at sentencing. The sentencing court ultimately found aggravator AS 12.55.155(c)(5) as well — i.e., that Lee's victims were particularly vulnerable.
The court sentenced Lee to 50 years' imprisonment with 10 years suspended on Count I, and to 40 years with 10 years suspended on Count II, to run consecutively — yielding a composite sentence of 90 years with 20 suspended, or 70 years to serve.
Lee challenges his sentence on various grounds. For the reasons explained here, we reject Lee's arguments and affirm his sentence.
Lee argues first that the superior court erred in finding the "vulnerable victim" aggravator. According to Lee, this aggravator does not apply to first-degree sexual assault cases because (according to Lee) Alaska's sexual assault statutes "demonstrate that the seriousness of a sexual assault actually decreases as the vulnerability of the victim increases."
Lee bases this surprising assertion on the fact that under AS 11.41.410, coerced sexual penetration of a conscious victim is first-degree sexual assault while under AS 11.41.420, sexual penetration of an unconscious or incapacitated victim is classified as second-degree sexual assault. Based on this difference in classification, Lee infers that the legislature viewed sexual assault to be less serious if the victim is particularly vulnerable.
AS 11.41.420(a)(3)(B) provides that a person commits second-degree sexual assault by engaging in sexual penetration "with a person who the offender knows is ... incapacitated." A person is incapacitated when "temporarily incapable of appraising the nature of [his or her] own conduct or physically unable to express unwillingness to act." AS 11.41.470(2).
But this reasoning is mistaken in two respects.
First, it ignores the fact that, under our law, first-degree sexual assault requires proof of an additional element — either proof of physical coercion (i.e., proof that the defendant used force or the threat of force to coerce an unwilling victim to engage in sexual penetration) or proof that the defendant knowingly procured the victim's incapacitation.
See AS 11.41.470(8)(A)&(B) (defining "without consent" under Alaska law).
Second, Lee's reasoning ignores the purpose of the aggravating and mitigating factors codified in AS 12.55.155(c)-(d). The legislature intended these factors to provide an objective way of identifying cases where a defendant's conduct or criminal history differed materially from the typical conduct or history of an offender convicted of the same offense.
See Knight v. State, 855 P.2d 1347, 1349 (Alaska App. 1993) (quoted with approval by the Alaska Supreme Court in State v. Parker, 147 P.3d 690, 695 (Alaska 2006)). See also Smith v. State, 258 P.3d 913, 920-21 (Alaska App. 2011); Braaten v. State, 705 P.2d 1311, 1324-25 (Alaska App. 1985); Heathcock v. State, 670 P.2d 1155, 1159 n.2 (Alaska App. 1983).
Thus, when a defendant is convicted of engaging in sexual penetration by coercion (as Lee was in this case), aggravator (c)(5) applies if the victim of that coercion was particularly vulnerable compared to the typical victim of coerced sexual penetration — i.e., particularly vulnerable among the class of victims who are conscious and who are coerced to engage in sexual penetration by force or the threat of force.
For these reasons, we reject Lee's argument that it is illogical, or that it is inconsistent with Alaska's statutory scheme of sex offenses, to apply the "vulnerable victim" aggravating factor to a defendant convicted of first-degree sexual assault.
Lee's second argument is based on the fact that the "vulnerable victim" aggravator is defined in relation to the victim "of the [defendant's] offense." Lee notes that when the sentencing judge discussed this aggravator, the judge referred to all the victims of Lee's conduct, including the victims of Lee's uncharged crimes. Lee argues that it was error for the judge to rely on the vulnerability of the victims of Lee's uncharged conduct.
AS 12.55.155(c)(5).
But when the judge made findings regarding the additional victims of the uncharged conduct, this was primarily to highlight Lee's larger pattern of targeting particularly vulnerable women. The judge's finding of aggravator (c)(5) was otherwise based on the five victims of Lee's charged conduct — all of whom had particular vulnerabilities. Three of these victims were homeless, three were under the influence of drugs or alcohol, and two had cognitive difficulties. The record therefore amply supports the judge's findings that these victims were particularly vulnerable.
Lee's third challenge to his sentence relates to a special probation condition that he proposed, which the sentencing judge rejected. At sentencing, Lee's attorney argued that Lee was a good candidate for rehabilitation, and the defense attorney argued for a low amount of active jail time and a high amount of suspended time, which would give Lee a chance to prove his rehabilitation potential. As part of this argument, Lee's attorney proposed that the sentencing judge impose a condition of probation that would require Lee to submit to any lawful means of technological monitoring that might exist at the time of his release — including any monitoring of his location, his activities, his brain functions, and his blood chemistry.
The prosecutor objected that this condition appeared to be unconstitutionally vague and/or overly intrusive. Lee's attorney admitted that the proposed condition was problematic, but he urged the court to impose the condition anyway — assuring the court that Lee was willing to waive any constitutional infirmities. The judge declined to impose the proposed special probation condition.
On appeal, Lee argues that the sentencing court erred when it refused to impose his proposed condition. It is not clear why Lee's appellate attorney is asking us to increase Lee's sentence by making his probation conditions more onerous than they already are. But in any case, we have reviewed the proposed probation condition as well as the reasons why the sentencing judge rejected this condition, and we find no error.
See Smith v. State, 349 P.3d 1087, 1092-93 (Alaska App. 2015).
Lee next argues that the sentencing court erred when it assessed Lee's prospects for rehabilitation as "questionable." But given the nature of Lee's crimes, the number of these crimes, Lee's admissions that he engaged in other uncharged sexual assaults, and the long period of time over which Lee committed his crimes, we find no error in the sentencing court's evaluation of Lee's prospects for rehabilitation.
Finally, Lee argues that the sentencing judge struck an impermissible balance of the Chaney factors because (according to Lee) the sentence that he received — 90 years' imprisonment with 20 years suspended — creates the illusion that Lee will one day be released on probation, when, in reality, Lee will likely die in jail. Lee asserts that, given this, the sentencing judge was required either to give more weight to the goal of rehabilitation (and impose a lower sentence) or put even greater emphasis than the court did on the goals of general deterrence, community condemnation, and isolation (and impose a higher sentence).
We find no merit to this argument. Lee's sexual offenses were numerous, they were committed over an extended period of time, and they were aggravated. The sentencing judge's balancing of the various Chaney factors was comprehensive and well-supported by the record. Lee points to nothing in the record to suggest that his sentence falls outside the reasonable range of sentences for his offenses, given the applicable sentencing range established by the legislature for first-degree sexual assault.
See State v. Wentz, 805 P.2d 962, 965 (Alaska 1991) (sentence for an offense is "clearly mistaken" when, based on the facts of a particular case, it is outside the permissible range of reasonable sentences in light of the total range of sentences authorized by legislature). --------
Accordingly, we AFFIRM the judgment of the superior court.