Opinion
Court of Appeals No. A-8792.
November 30, 2005.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Trial Court No. 3AN-03-3452 CR.
Daniel Lowery, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Natasha Norris and Taylor E. Winston, Assistant District Attorneys, and Leonard M. Linton, Jr., District Attorney, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
The State indicted Ted C. Beard for multiple counts of first and second-degree sexual abuse of a minor for the sexual abuse of his three stepdaughters, age 11, 14, and 15, from June 2000 through March 2003. Beard entered into a plea bargain with the State, pleading no contest to one consolidated count for each victim: two counts of sexual abuse of a minor in the first degree and one count of sexual abuse of a minor in the second degree. As part of the plea agreement, Beard admitted to three statutory aggravating factors: that "the conduct constituting the offense was among the most serious conduct included in the definition of the offense;" that his offenses were committed against a member of his family living with him; and that he had engaged in similar conduct with more than one victim.
AS 12.55.155(c)(10).
AS 12.55.155(c)(18)(A) and (B).
Superior Court Judge Michael L. Wolverton imposed a composite sentence of 28 years of imprisonment with 10 years suspended, 18 years to serve. Beard appealed to this court, arguing that his sentence was excessive.
In State v. Andrews, this court described a benchmark sentencing range of 10 to 15 years to serve for first felony offenders convicted of aggravated instances of child sexual abuse. We stated that, for these purposes, aggravated cases were those in which the defendant abused multiple victims, or committed multiple assaults on the same victim, or inflicted serious injury on one or more victims.
707 P.2d 900 (Alaska App. 1985); aff'd on other grounds, 723 P.2d 85 (Alaska 1986).
Id. at 913.
Id.
We remanded Beard's case to the superior court because Judge Wolverton had not expressly addressed the Andrews benchmark range and had not given any reason for imposing a sentence that exceeded the Andrews benchmark. We directed Judge Wolverton to either impose a sentence within the Andrews benchmark range or, if he concluded that a sentence higher than the Andrews benchmark range was justified, he should make specific findings explaining his reasons for departing from the benchmark.
Beard v. State, Alaska App. Memorandum Opinion and Judgment No. 4961 at 4 (Jan. 5, 2005).
On remand, Judge Wolverton reimposed the composite sentence of 18 years to serve. In doing so, Judge Wolverton explained his reasons for departing from the Andrews benchmark. He first adopted the State's summary of Beard's offenses:
The defendant committed 33 sexual acts on his three stepdaughters ages 11 to 15. He committed these crimes over a 9-month period and instead of stopping at any given point when he acknowledged the wrongfulness of his acts to B.R., he continued gratifying himself further by adding victims to his list.
Judge Wolverton noted that, in Andrews, we stated the following:
These benchmarks are applicable to all aggravated cases, whether aggravation is found, because of: (1) multiple victims; (2) multiple assaults on a single victim; or (3) serious injuries to one or more victims. Of course, a trial court is not bound to sentence in accordance with a benchmark and should not do so in a truly extraordinary case.
Andrews, 707 P.2d at 913.
Judge Wolverton pointed out that, under Andrews, a case could be aggravated because it met any one of these three criteria. He found that Beard's case was extraordinary because it involved all three of the criteria: multiple victims, multiple assaults on a single victim, and serious injuries to the victims. Judge Wolverton's reading of Andrews is supported by our more recent analysis in Shumacher v. State, where we stated:
11 P.3d 397, 401 (Alaska App. 2000).
In State v. Andrews, this court outlined a benchmark sentencing range of 10 to 15 years for first offenders convicted of aggravated instances of child sexual abuse. We indicated that an offense could be aggravated for any one of the following three reasons: (1) the defendant abused multiple victims; (2) the defendant committed multiple assaults on a single victim; or (3) the defendant caused serious injury to one or more victims.
707 P.2d 900 (Alaska App. 1985).
Id. at 913; see also Haire v. State, 877 P.2d 1302, 1305 (Alaska App. 1994).
See Andrews, 707 P.2d at 913.
Judge Wolverton also concluded that a sentence in excess of the Andrews benchmark range was justified because Beard was "an extremely poor candidate for rehabilitation." He supported this conclusion by pointing out that in Beard's allocution, at the resentencing hearing, he tried to shift some of the responsibility to one of his victims and then denied that he had sexually abused the other two victims. Judge Wolverton also found that Beard "displayed a callous willingness to exploit his victims, all members of his family, for his sexual gratification."
We conclude that Judge Wolverton's sentencing remarks and sentencing findings justify the sentence that he imposed. Accordingly, we conclude that the sentence is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
Beard argues that Judge Wolverton could not exceed the benchmark range described in Andrews without violating the United States Supreme Court's decision in Blakely v. Washington. But we remanded this case to Judge Wolverton for the sole purpose of having him consider whether to impose a sentence in excess of the Andrews benchmark. Beard cannot inject new issues on appeal at this stage of the litigation. Beard can raise his contentions that Judge Wolverton's sentence was imposed in violation of Blakely in a separate action.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
The sentence is AFFIRMED.