Opinion
Court of Appeals No. A-10554 No. 6182
05-06-2015
HECTOR R. ALVARENGA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Christine S. Schleuss, Law Office of Christine Schleuss, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, 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. Trial Court No. 3AN-07-13731 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Christine S. Schleuss, Law Office of Christine Schleuss, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Hector R. Alvarenga was convicted of two counts of first-degree sexual abuse of a minor for engaging in sexual penetration with his stepdaughter, L.C., a child under the age of thirteen. For these crimes, the superior court sentenced Alvarenga to a composite term of 37 years' imprisonment with 5 years suspended — 32 years to serve.
After the superior court entered this judgement against Alvarenga, he filed an appeal in which he challenged his convictions and the severity of his sentence. In our previous opinion in this case, Alvarenga v. State, unpublished, 2013 WL 492864 (Alaska App. 2013), we affirmed Alvarenga's convictions but we did not resolve Alvarenga's sentence appeal because, at that time, our jurisdiction to hear the sentence appeal was in doubt. Our decision in Mund v. State, 325 P.3d 535 (Alaska App. 2014), has since clarified that we have jurisdiction to resolve Alvarenga's excessive sentence claim. We therefore now turn to the merits of that claim.
Alvarenga was convicted of two counts of first-degree sexual abuse of a minor. The first of these counts was based on conduct that occurred on or about December 1, 2007. For that count, Alvarenga faced a presumptive sentencing range of 25 to 35 years' imprisonment under the current version of AS 12.55.125(i). The second count was based on conduct that occurred sometime between June 2004 and June 2005. For that second count, Alvarenga faced a presumptive term of 8 years' imprisonment under a former version of AS 12.55.125(i).
AS 12.55.125(i)(1)(A).
Former AS 12.55.125(i)(1) (pre-2006 version).
At sentencing, Alvarenga proposed two of the mitigating factors codified in AS 12.55.155(d), but the superior court ruled against Alvarenga with respect to both of the proposed mitigators, and Alvarenga has not appealed the court's rulings. Thus, by law, the superior court was required to impose a sentence at least equal to the low end of the presumptive range — 25 years' imprisonment — for the first count, and to impose the 8-year presumptive term of imprisonment on the second count.
Under the provisions of AS 12.55.127(c)(2)(E), the superior court was required to impose at least one-fourth of this 8-year presumptive term — i.e., 2 years — consecutively to the sentence Alvarenga received for the first count. This meant that Alvarenga's effective minimum sentence was 27 years' imprisonment (25 plus 2). It also meant that if Alvarenga received a sentence within the 25- to 35-year presumptive range for the first count, the superior court would have to impose a composite sentence of between 27 and 37 years to serve.
As we noted earlier, the superior court imposed a composite sentence in the middle of this range: 37 years with 5 suspended, or 32 years to serve.
In his appellate brief, Alvarenga argues that his background and his past history suggest that he has good prospects for rehabilitation. But the superior court found that Alvarenga's prospects for rehabilitation were "guarded", primarily because Alvarenga showed no remorse for his crimes and refused to accept any responsibility for them.
Alvarenga also argues that the legislatively prescribed 25- to 35-year presumptive range for his 2007 offense is "draconian", in that it required the superior court to impose a sentence that was far greater than the sentences that would have been imposed for similar conduct before 2006 (when the legislature revised the sentences for sexual felonies). For this reason, Alvarenga argues that the superior court was clearly mistaken to impose any sentence greater than the absolute minimum sentence allowed by law: 27 years' imprisonment.
See SLA 2006, ch. 14, § 4.
But the fact that the presumptive sentencing ranges for sexual felonies used to be substantially lower does not mean that the current presumptive ranges are unjust or "clearly mistaken". The presumptive sentencing range for an offense represents the legislature's assessment of the appropriate sentence for a typical offender within that category. Beltz v. State, 980 P.2d 474, 480 (Alaska App. 1999). And it is the role of the legislature, not the judiciary, to establish the punishment (or range of punishments) for a particular offense. Ibid. Generally speaking, "the comparative gravity of offenses and their classification and resultant punishments is for legislative determination." Alex v. State, 484 P.2d 677, 685 (Alaska 1971).
Here, a 25- to 35-year presumptive range applied to Alvarenga's 2007 offense. Given the superior court's rejection of Alvarenga's proposed mitigating factors, and given the superior court's duty to impose at least 2 years of Alvarenga's other sentence consecutively, Alvarenga's effective minimum sentence was 27 years' imprisonment. Alvarenga's sentencing judge articulated several reasons why he concluded that Alvarenga should receive a sentence more severe than this minimum.
We have independently reviewed the record in this case, and we conclude that Alvarenga's sentence is not clearly mistaken — i.e., that it falls within the range of reasonable sentences for Alvarenga's offenses.
See State v. Korkow, 314 P.3d 560, 562 (Alaska 2013).
--------
Accordingly, the judgement of the superior court is AFFIRMED.