Opinion
Court of Appeals No. A-10910 Trial Court No. 3AN-07-3545 CR No. 5917
02-06-2013
CLINT LAVELL BERNHARDT, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Leslie A. Hiebert, Anchorage, for the Appellant. Mary A. Gilson, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge.
Appearances: Leslie A. Hiebert, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
Judge MANNHEIMER.
Clint Lavell Bernhardt was convicted of first-degree sexual assault and fourth-degree assault, based on allegations that he beat up and raped R.S., a woman with whom he was partying.
In this appeal, Bernhardt argues that the superior court should have dismissed the indictment against him with prejudice (i.e., barring the State from seeking reindictment) because of the prosecutor's alleged misconduct in allowing a grand jury witness, who offered exculpatory testimony, to testify while the witness was intoxicated.
Bernhardt also argues that he is entitled to a new trial because, at trial, the judge allowed the prosecutor to argue for conviction based on a theory of sexual assault that was different from the theory presented to the grand jury.
In addition, Bernhardt argues that the evidence presented at his trial is legally insufficient to support his sexual assault conviction, and he further argues that his sentence is excessive.
For the reasons explained in this opinion, we conclude that none of Bernhardt's arguments have merit, and we therefore affirm his conviction and sentence.
The conflicting evidence concerning the sexual assault, and the superior court's decisions to require the State to present Bernhardt's case to the grand jury four different times
R.S. was previously acquainted with Bernhardt, although she knew him by the name of "Clint Eastwood". Bernhardt and R.S. had gone drinking together before, and on a few occasions they had engaged in consensual sexual intercourse.
On the evening of April 7, 2007, R.S. encountered Bernhardt while she was walking near downtown Anchorage, and Bernhardt asked her to join him at the Mush Inn for a party. Two other friends of Bernhardt's were also present at the Mush Inn: Joseph Ahtuangaruak and Marjorie Nusunginya.
All four had been drinking heavily, and they continued to drink. According to the State's evidence, at some point in the evening, Bernhardt whispered to R.S. that he wanted to "make love" to her. R.S. replied that she didn't want to engage in sex while the other people were in the room. Bernhardt then punched R.S. several times in the head and face, knocking her out.
When R.S. woke up later, she found that she was no longer wearing her shoes, her socks, and her glasses. R.S. also had trouble opening her eyes because her face was so swollen.
R.S. found her way to the door and left the hotel room. She knocked at the door of Joseph Sheppard, who was also staying at the Mush Inn. Sheppard saw that R.S. had been beaten, and he asked her what was wrong. After R.S. told Sheppard she had been raped and beaten, Sheppard called 911. When R.S. spoke to the 911 operator, she repeated that she had been "raped and beat up".
Anchorage Police Officer Justin Hadley was the first officer to interview R.S.. Hadley asked R.S. if "Clint" had done this to her, and she answered yes. R.S. told Hadley that Bernhardt had attacked her "all of a sudden", but she suggested that Bernhardt had sexually assaulted her before he started beating her. This statement was inconsistent with all of R.S.'s later statements and testimony about the sexual assault.
For example, when Detective William Morris arrived to interview R.S. at the sexual assault response team center, R.S. told him that Bernhardt had wanted to make love, but she declined because people were present, and then Bernhardt began hitting her in the face. When Detective Morris asked R.S. if Bernhardt engaged in sex with her, R.S. responded, "No, but somehow he did." She then explained that she had tried to push Bernhardt away, but he put his penis in her vagina despite her efforts.
An ensuing medical examination revealed that R.S. had bruises on her upper body (face, neck, shoulder, chest, and wrists) as well as lacerations and abrasions to her face, scratch marks on her back, and some abrasion to her labia.
The three other people in the hotel room — Bernhardt, Nusunginya, and Ahtuangaruak — gave accounts that tended to contradict R.S.'s claim of rape.
During Bernhardt's interview with Detective John McKinnon, Bernhardt asserted that he and R.S. engaged in consensual sex in the presence of Nusunginya and Ahtuangaruak, and that everybody was drunk and having a good time. During this interview, the detective noticed that Bernhardt had blood on his nose and on his right cheek, but Bernhardt claimed that he had been scratched by a stick at a campground. Bernhardt also had blood underneath the fingernails of his right hand, and scrapes on both of his hands. Bernhardt claimed that his hands were injured when he fell on the ice. Bernhardt denied beating or raping R.S..
Anchorage Police Officer Samuel Flack interviewed Marjorie Nusunginya at the Mush Inn, and Nusunginya gave a somewhat confusing account of what happened.
Nusunginya confirmed that Bernhardt and R.S. were lying together in one of the two beds in the hotel room. Nusunginya heard R.S. say, "Ow" and "Quit it". Nusunginya also confirmed that Bernhardt engaged in sex with R.S.. When Officer Flack asked Nusunginya if R.S. had wanted to have sex with Bernhardt, Nusunginya said that "they sounded like it [was consensual]". But when Officer Flack asked Nusunginya if she thought Bernhardt might have tried to rape R.S., Nusunginya replied, "I don't know." Nusunginya also claimed not to know for certain whether she heard R.S. say "ow" or "quit it" before or after she heard the couple having sex.
The fourth person in the hotel room that night, Joseph Ahtuangaruak, declared that he did not hear or see anything happen to R.S.. In particular, he stated that he never saw Bernhardt hit R.S., and he claimed to have no knowledge as to whether Bernhardt engaged in sex with R.S..
The State ultimately had to present Bernhardt's case to the grand jury four times. The superior court dismissed the first indictment because the State had not called Nusunginya and Ahtuangaruak to testify. (As just explained, these two witnesses' police statements tended to be exculpatory).
Marjorie Nusunginya died before the State presented Bernhardt's case to the grand jury for the second time, but the prosecutor called Officer Flack to testify about what Nusunginya had told him. Ahtuangaruak was also temporarily unavailable (he was attending a funeral in Barrow), so the prosecutor played a recording of Ahtuangaruak's statement to the police.
The superior court dismissed this second indictment because the court concluded that the State should have played the recording of Nusunginya's police statement, rather than relying on Flack's descriptions of what she had said. The superior court also concluded that the State should have waited until Ahtuangaruak could testify in person.
When the State presented Bernhardt's case to the grand jury for the third time, Ahtuangaruak testified in person, and the State played the recording of Nusunginya's police statement — but the prosecutor redacted the initial several minutes of the recording because he concluded that this portion was irrelevant. (In this portion, Officer Flack was apparently trying to rouse Nusunginya so that she could be interviewed.)
The superior court dismissed this third indictment because the court concluded that the State should have played the recording of Nusunginya's police statement in its entirety.
The State then presented Bernhardt's case to the grand jury for a fourth time. This time, the State played the recording of Marjorie Nusunginya's police statement in its entirety, and Joseph Ahtuangaruak again testified in person. However, Ahtuangaruak was intoxicated when he showed up to give his testimony.
Ahtuangaruak was boisterous, and he did not appear to be taking the proceedings seriously. At one point, Ahtuangaruak picked up the microphone and yelled, "Hello, anybody here?" And several times during his testimony, Ahtuangaruak responded to questions by saying, "I don't care," or "It don't matter."
Bernhardt's argument that the superior court should have dismissed the fourth indictment with prejudice
After the grand jury indicted Bernhardt for the fourth time, Bernhardt's attorney again asked the superior court to dismiss the indictment — this time, with prejudice. The defense attorney argued that the State engaged in misconduct by presenting Ahtuangaruak's testimony while he was drunk. The defense attorney asserted that Ahtuangaruak's attitude toward his testimony — in particular, Ahtuangaruak's repeated assertions that he didn't care about the facts of the case — showed that his intoxication interfered with his ability to testify. The defense attorney also asserted that the grand jurors might have discounted Ahtuangaruak's exculpatory testimony simply because he was intoxicated. The defense attorney argued that the prosecutor should have adjourned the grand jury hearing and should have told Ahtuangaruak to go home, get sober, and return the next day.
(In a single sentence at the end of this lengthy argument concerning Ahtuangaruak, the defense attorney suggested that the prosecutor should also have given the same advice to R.S. — i.e., to go home, get sober, and return the next day. Bernhardt's attorney apparently inferred, from the grand jury record, that R.S. also seemed to be intoxicated, at least to some extent, when she appeared before the grand jury. The defense attorney conceded, however, that "[R.S.'s] level of intoxication was less obvious than the boisterous Ahtuangaruak", and the defense attorney did not argue that the prosecutor engaged in misconduct by presenting her testimony.)
The defense attorney made a separate argument concerning R.S.'s testimony: she argued that the State failed to honor its duty to present exculpatory testimony to the grand jury by failing to confront R.S. with various inconsistent statements that she had made about the incident.
The superior court denied Bernhardt's motion to dismiss the fourth indictment. With respect to the issue of witness intoxication, the superior court found that the record failed to establish Bernhardt's claim that either Ahtuangaruak's or R.S.'s consumption of alcohol impaired their ability "to testify accurately or completely".
The superior court further noted that Ahtuangaruak's grand jury testimony was "essentially favorable to [Bernhardt]". This was an apparent reference to the fact that Ahtuangaruak stated (during his grand jury testimony) that, as far as he knew, nothing untoward happened in the hotel room that night — although Ahtuangaruak undercut the force of this testimony by also insisting that he had blacked out.
The record supports the superior court's resolution of this matter. Ahtuangaruak did, indeed, give testimony that was favorable to Bernhardt. He told the grand jurors that he was there in the hotel room and that, as far as he knew, nothing happened to R.S.. We note that the prosecutor apprised the grand jurors that Ahtuangaruak's testimony on this point was consistent with his initial statement to the police.
It is true that Ahtuangaruak displayed a flippant or nonchalant attitude during his testimony to the fourth grand jury. But he appears to have displayed that same attitude when he later testified at Bernhardt's trial. See, for example, the trial transcript at pages 883-84 (where Ahtuangaruak denied knowing Bernhardt, even though they had known each other for years); at page 893 (where Ahtuangaruak was asked if he remembered the room at the Mush Inn, and he replied, "It doesn't matter."); and at pages 897 and 903 (where Ahtuangaruak twice declared that he did not remember the police coming to the hotel).
With respect to the State's failure to apprise the grand jury of R.S.'s inconsistent statements, the superior court found that this evidence was not independently exculpatory, but was rather impeachment material — and that, therefore, the prosecutor's failure to present this evidence did not constitute a violation of his duty to present exculpatory evidence to the grand jury. Again, the record supports the superior court's view of this matter.
For these reasons, we uphold the superior court's denial of Bernhardt's motion to dismiss the fourth indictment.
The superior court's decision to allow the State to argue both of the two statutory theories of "without consent", even though the State relied on only one of these theories at grand jury
Bernhardt was charged with first-degree sexual assault under AS 11.41.-410(a)(1). Under this subsection of the statute, the offense of first-degree sexual assault requires proof that the sexual penetration occurred "without consent".
The element of "without consent" is defined in AS 11.41.470(8). Under this statute, the element of "without consent" can be proved in two different ways: either (A) by proof that the victim was coerced to engage in the sexual penetration by force or the threat of force, or (B) by proof that, at the time of the sexual penetration, the victim was incapacitated as a result of an act performed by the defendant.
The prosecutor who presented Bernhardt's case to the grand jury asked the grand jurors to consider only clause (B) of this definition — i.e., the incapacitation theory of "without consent". The prosecutor argued that Bernhardt rendered R.S. unconscious by beating her, and that Bernhardt then engaged in sexual penetration with R.S. while she was incapacitated. The grand jury indicted Bernhardt under this theory.
But on February 5, 2010 — i.e., about three months before Bernhardt's trial began — the superior court granted the State's request to be allowed to seek Bernhardt's conviction under both clauses of the definition of "without consent". In other words, the superior court allowed the State to argue that Bernhardt should be convicted under the coercion theory as well as the incapacitation theory.
In accordance with this pre-trial ruling, the jury at Bernhardt's trial was instructed on both meanings of "without consent". The jury found Bernhardt guilty of first-degree sexual assault, but the verdict form did not require the jury to specify which theory (or theories) of "without consent" the State had proved.
On appeal, Bernhardt argues that it was error for the trial judge to allow the jury to consider both theories of "without consent" when the State relied solely on the incapacitation theory at grand jury.
Bernhardt's argument would have considerable force if R.S.'s alleged incapacitation had stemmed from a cause that was independent of Bernhardt's act of beating her — for example, if the State had argued at trial that Bernhardt had either forcibly coerced R.S. into engaging in sexual penetration by beating her, or that Bernhardt had rendered R.S. unconscious by slipping a drug into her drink, and that he then sexually penetrated her while she was incapacitated by intoxication.
In the example in the preceding paragraph, the State's alternative arguments for conviction would be based on different assertions about Bernhardt's underlying conduct — alternative formulations as to what actus reus he committed that rendered the ensuing sexual penetration "without consent". Because of this, the State's alternative argument might constitute a material variance from the grand jury indictment under our supreme court's decision in Michael v. State, 805 P.2d 371 (Alaska 1991).
In Michael, the defendant was indicted for assault under the theory that he beat and injured his child, either personally or acting as the accomplice of his wife. Id. at 372. But the defendant was convicted at trial under the theory that he failed to fulfill his parental duty to protect the child from his wife, who was the one actually inflicting the injuries on the child. Ibid. The supreme court held that it was improper to convict the defendant under this theory of culpability, because it was so significantly different from the theory endorsed by the grand jury. Id. at 374.
But in Bernhardt's case, the State's assertions about Bernhardt's underlying conduct remained the same under either the coercion theory or the incapacitation theory. Under both theories, the State alleged that Bernhardt beat R.S.. The difference between the two theories lay in the result of that beating. Under the State's incapacitation theory, Bernhardt beat R.S. to the point where she became unconscious — thus rendering her incapacitated for purposes of the sexual assault statute. The State's alternative theory, coercion, likewise rested on the allegation that Bernhardt beat R.S. — perhaps not to the point where she became unconscious, but still to the point where she was forcibly coerced to engage in the sexual penetration.
Thus, Bernhardt's case presents an issue similar to the ones we confronted in Rogers v. State, 232 P.3d 1226 (Alaska App. 2010), and in Norris v. State, 857 P.2d 349 (Alaska App. 1993).
In Rogers, the defendant was indicted for first-degree murder under the theory that he became embroiled in a confrontation with another man in a bar, and he then pulled a gun and intentionally shot and killed this man. At trial, Rogers testified that he was holding the gun, not intending to use it, when this man and his friends jumped him — causing the gun to accidentally discharge. The jury apparently adopted a middle view of the facts and found Rogers guilty of manslaughter.
Ibid.
Id. at 1236-37.
In his appeal, Rogers argued that, under the supreme court's decision in Michael, his trial jury was prohibited from finding him guilty of a lesser degree of criminal homicide if the trial jury disagreed with the grand jury's assessment that Rogers deliberately shot the other man. This Court rejected the contention that Michael categorically forbids a trial jury from finding a defendant guilty based on a view of the defendant's conduct that is different from the grand jury's. We stated:
Id. at 1238.
Id. at 1239.
The supreme court's decision in Michael does not stand for the rule that a trial jury is forbidden to deviate from the view of events adopted by the grand jury. Rather, Michael stands for the rule that, in felony prosecutions, the defendant can not be convicted of an offense unless the State has obtained a grand jury finding on every essential element of that offense.Rogers, 232 P.3d at 1240. We then added, for clarification, that "it is sufficient if the grand jury's findings include the essential elements of the offense for which the defendant is convicted — as, for instance, where the grand jury finds that the defendant acted 'intentionally' with respect to a result specified in the statute, and the trial jury finds that the defendant acted 'recklessly' with respect to this result." Id. at 1241 (emphasis in the original).
The Norris decision involved a similar dispute regarding the defendant's conduct in a prosecution for second-degree murder. We held that the jurors did not need to unanimously agree on whether the victim died because the defendant deliberately fired his rifle at the victim (as the government alleged) or, instead, whether the defendant merely pointed the rifle at the victim, and the victim responded by grabbing the pointed rifle, causing it to discharge by accident. 857 P.2d at 354.
Based on this case law, and given the facts of Bernhardt's case, we conclude that the difference between the State's theories of coercion and incapacitation was not a fatal variance. The State's theory at grand jury — incapacitation — was based on the assertion that Bernhardt beat R.S. until she became unconscious. The State's second theory, coercion, was effectively a lesser included theory — an assertion that Bernhardt's beating of R.S. did not lead to the extreme result of unconsciousness, but rather to the more typical result of coercion. But under either theory, the State's allegation regarding Bernhardt's underlying conduct remained unchanged.
In his brief to this Court, Bernhardt contends that the State's coercion theory required litigation of factual questions beyond those presented to the grand jury, in that the coercion theory required proof that R.S. actively resisted Bernhardt's attempt to have sex with her, and that Bernhardt then beat R.S. to overcome her physical resistance. This is mistaken. The coercion clause of the definition of "without consent", AS 11.41.470(8)(A), expressly declares that an act of sexual penetration achieved by forcible coercion is "without consent" whether the victim resists or not.
For these reasons, we conclude that the superior court did not commit error when it allowed the State to argue to the jury that Bernhardt's sexual penetration of R.S. was "without consent" under both a coercion theory and an incapacitation theory.
The legal sufficiency of the evidence presented at Bernhardt's trial to support his conviction for sexual assault
Bernhardt argues that the evidence presented at his trial was legally insufficient to support his sexual assault conviction. He points out that there were substantial differences in the testimony of the witnesses to the event (R.S., Bernhardt, and Ahtuangaruak), and he points out that there were significant reasons to doubt the reliability of R.S.'s account.
But when an appellate court assesses the sufficiency of the evidence to support a conviction, we must view the evidence, and the reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the jury's verdict. Applying this standard to the evidence presented at Bernhardt's trial, we conclude that the evidence is sufficient to support Bernhardt's conviction.
Cleveland v. State, 258 P.3d 878, 885 (Alaska App. 2011).
Bernhardt's objections to various evidentiary rulings made by the superior court
In the section of Bernhardt's brief devoted to the question of the sufficiency of the evidence, Bernhardt includes an extensive attack on various evidentiary rulings made by the superior court at his trial — rulings regarding the admissibility of R.S.'s prior out-of-court statements, rulings regarding the type of questions that the prosecutor was allowed to ask R.S., and a ruling which disallowed one particular question that the defense attorney wanted to ask R.S..
(This last point of error was not preserved. The defense attorney wanted to ask R.S. if she thought there was a difference between what she remembered about the incident and what actually happened. [Tr. 648] The superior court ruled that the defense attorney was essentially engaging in argument, and that the defense attorney should wait to make this point in her summation. The defense attorney's response to the judge's ruling was, "Okay.")
In the context of assessing the sufficiency of the evidence to support Bernhardt's conviction, all of Bernhardt's attacks on the superior court's evidentiary rulings are moot. The sufficiency of the evidence to support a criminal conviction is assessed in light of all the evidence presented at the defendant's trial — even the evidence that was wrongfully admitted. Thus, even if we assume for purposes of argument that the superior court erroneously admitted R.S.'s prior statements, or that the court erroneously allowed the prosecutor to employ objectionable questions to elicit testimony, this would not affect the legal sufficiency of the evidence to support Bernhardt's conviction.
Lockhart v. Nelson, 488 U.S. 33, 40-42; 109 S.Ct. 285, 290-92; 102 L.Ed.2d 265 (1988); Langevin v. State, 258 P.3d 866, 874 (Alaska App. 2011); Houston-Hult v. State, 843 P.2d 1262, 1265 n. 2 (Alaska App. 1992); LaFave, Israel, King, and Kerr, Criminal Procedure (3rd ed. 2007), § 25.4(c), Vol. 6, pp. 651-52.
Bernhardt's argument that his sentence is excessive
Because Bernhardt was a first felony offender, and because he did not use a dangerous instrument or cause serious physical injury to R.S., Bernhardt faced a presumptive sentencing range of 20 to 30 years' imprisonment for first-degree sexual assault.
See AS 12.55.125(i)(1)(A)(ii).
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Even though the superior court found aggravator AS 12.55.155(c)(8) (i.e., that Bernhardt had a history of repeated assaultive behavior), the court ultimately sentenced Bernhardt to 25 years' imprisonment with 5 years suspended (i.e., 20 years to serve) — a sentence toward the low end of the presumptive range.
During the sentencing proceedings, Bernhardt's attorney argued that Bernhardt's offense was mitigated under AS 12.55.155(d)(9); this mitigator applies to cases where the defendant's conduct was among the least serious within the definition of the offense.
In her argument on this matter, the defense attorney noted that there was a dispute in the trial testimony as to whether Bernhardt beat up R.S. and sexually assaulted her at the same time, or whether these two events occurred at different times (within the same episode). The sentencing judge agreed that this was an open question.
A few minutes later, when the sentencing judge announced his ruling on mitigator (d)(9), the judge rejected this mitigator without resolving the factual question of whether the beating was contemporaneous with the sexual penetration:
The Court: I've seen ... too many of these [cases] through the years. ... [P]eople who ... get together consensually ... during the evening, [and] drink, [and] end up in a hotel room. And we'll never know exactly what the sequence was, and how things happened. But somebody comes out looking like that [i.e., beaten up], and a jury struggles with the evidence, and the lack of evidence, and makes their findings. ...
And the sad truth is that this [case] is not at all "least serious". It's basically a [type of] sexual assault that has occurred many, many times. And [do we say to the victim], "If you don't want to get pummeled, and you don't want to cry for help, and you acquiesce, but you're not consenting, [that means the offense is] least serious"? ... That can't be the law. To avoid [the] "least serious" [mitigator], you have to submit yourself to a pummeling? ... [T]hat interpretation [of the law] shocks my conscience. ... So I cannot find that this is least serious. I think it's, unfortunately, within the definition of the offense as defined by our legislature.
In his brief to this Court, Bernhardt argues that it was impossible for the superior court to make a proper ruling on mitigator (d)(9) without resolving this question of fact (i.e., the sequence of the beating and the sexual penetration) — and, for that reason, this Court must vacate the superior court's decision and order the superior court to reconsider mitigator (d)(9).
As can be seen from the quoted excerpt of the superior court's ruling, the sentencing judge concluded that mitigator (d)(9) was not proved, regardless of whether Bernhardt beat up R.S. before or after the sexual assault. Thus, Bernhardt's argument on appeal is implicitly premised on the assertion that if, indeed, Bernhardt beat up R.S. after he sexually assaulted her, the superior court could not properly reject the proposed mitigator.
But Bernhardt presents no argument to support this premise — i.e., no argument that an act of sexual penetration that is coerced by threat or by slight force (as opposed to a beating) is, by law, among the least serious of sexual assaults. And Bernhardt's sentencing judge affirmatively explained why he concluded that this premise was false — i.e., why he concluded that Bernhardt's sexual assault was not among the least serious, even if R.S. submitted to the sexual penetration before Bernhardt beat her up, in the ultimately vain hope of avoiding that beating.
We therefore affirm the superior court's ruling on mitigator (d)(9).
Bernhardt also argues that, if the superior court correctly rejected mitigator (d)(9), then the superior court should have referred Bernhardt's case to the three-judge sentencing panel.
In the superior court, Bernhardt's attorney argued that the case should be referred to the three-judge panel because even a sentence at the low end of the applicable presumptive sentencing range (20 years' imprisonment) would be manifestly disproportionate to the kind of sentence justified by Bernhardt's conduct:
Defense Attorney: This Court has a responsibility versus the legislature, [and that responsibility must be exercised] when the legislature steps past [the point] where
this Court feels comfortable going — if there's just a manifest problem with [the legislature's] approach, [when it] is not fair, it's not just, it doesn't follow [the] Chaney [sentencing] factors, [and] it is disproportionate to the conduct. And when I look at Mr. Bernhardt individually, not because I disagree with the law, but because Mr. Bernhardt as an individual doesn't meet the criteria for this kind of sentence, then the Court has a duty to express that [conclusion] by referring [the case] to [the] three-judge panel. And that is authority vested in this Court for very good reason.
The sentencing judge rejected the defense attorney's request for referral to the three-judge panel, explaining that he "[did not] see any basis for sending [Bernhardt's case] to the three-judge panel":
The Court: [This case is] basically down the middle, as far as these offenses go. And there's no point in discussing the [alleged excessiveness of the] penalty set forth in the presumptive ranges [enacted] by the legislature — because the Court of Appeals has made it abundantly clear that that's what the legislature gets to do. And so [the courts] are confined by those sentencing ranges. I don't find Mr. Bernhardt to be a youthful offender. I don't find any extraordinary potential for rehabilitation. I don't find to the contrary; I just find no basis for sending this [case] to the three-judge panel.
In his brief to this Court, Bernhardt relies on the above-quoted excerpt of the sentencing judge's remarks, and he argues that the sentencing judge committed error by refusing to decide whether a sentence at the low end of the presumptive range (20 years to serve) would be manifestly unjust under the facts of Bernhardt's case.
As can be seen from the above-quoted excerpt, the defense attorney's argument on this point was ambiguously worded. The attorney might have been arguing that the legislature's choice of a 20- to 30-year presumptive range was manifestly disproportionate (as a general matter) for this type of crime. We refer here to the defense attorney's assertion that sentencing judges have a legal duty to refer cases to the three-judge panel "when[ever] the legislature steps past [the point] where this Court feels comfortable going" — "when there's just a manifest problem with [the legislature's] approach", when that approach "is not fair".
Alternatively, the attorney might have been arguing that the low end of the presumptive range — 20 years' imprisonment — was manifestly unfair under the specific facts of Bernhardt's offense.
The sentencing judge appears to have perceived this ambiguity, because he responded to both of these arguments.
With respect to the contention that the presumptive range was inherently unfair as a general matter, the sentencing judge correctly rejected this argument. As this Court explained in Beltz v. State, 980 P.2d 474 (Alaska App. 1999), a sentencing court has no authority to declare a presumptive sentencing range to be manifestly unjust as a general matter:
When the legislature promulgated AS 12.55.165 and 175 — the so-called "safety valve" statutes — the legislature recognized that there might be unusual circumstances in which the prescribed presumptive term of imprisonment would be manifestly unjust (even after all possible adjustment for aggravating and mitigating factors). In such circumstances, a defendant's case can be referred to the three-judge sentencing panel — a panel that has the power to impose sentence outside the normal constraints of presumptive sentencing. But these "safety valve" statutes do not authorize sentencing judges to disregard the legislature's assessment concerning the relative seriousness of the crime or the general appropriateness of the prescribed penalty. In other words, ... a presumptive term can not be "manifestly unjust" in general. It can only be "manifestly unjust" as applied to a particular defendant. Before a sentencing judge can properly characterize a presumptive term as "manifestly unjust", the judge must articulate specific circumstances that make the defendant significantly different from a typical offender within that category or that make the defendant's conduct significantly different from a typical offense.Beltz, 980 P.2d at 480.
The sentencing judge then turned to the alternative contention that the low end of the presumptive range was manifestly unjust, given the facts of Bernhardt's case. The judge noted that Bernhardt was not a youthful offender; the judge found that Bernhardt did not have an extraordinary potential for rehabilitation; and the judge declared that he could see no basis for sending Bernhardt's case to the three-judge panel.
On appeal, Bernhardt asserts that his attorney did not attack the presumptive range as a general matter, but instead argued solely that the presumptive range was manifestly unjust under the particular facts of Bernhardt's case. And, based on this assertion, Bernhardt contends the first portion of the sentencing judge's remarks (quoted above) demonstrates that the judge was laboring under an improper "inhibition" about referring cases to the three-judge panel.
We do not read the sentencing judge's remarks in this manner. As we have explained, the first portion of the judge's remarks constituted a response to the defense attorney's argument that judges have a "veto" power vis-a-vis the legislature: the alleged power to circumvent a presumptive range enacted by the legislature, by sending cases to the three-judge panel whenever the judge concludes that the applicable presumptive range is manifestly too severe for a particular statutory crime. The second portion of the judge's remarks constituted a response to the argument that 20 years to serve was manifestly too harsh, given the facts of Berhardt's case.
If, after hearing the sentencing judge deliver these remarks, Bernhardt's attorney believed that the sentencing judge had misconstrued the substance of the attorney's argument, then Bernhardt's attorney should have brought this matter to the sentencing judge's attention and asked for a fuller ruling on the question of whether the applicable presumptive range was manifestly unjust under the particular facts of Bernhardt's case.
For these reasons, we uphold the sentencing judge's decision not to refer Bernhardt's case to the three-judge panel.
Conclusion
The judgement of the superior court is AFFIRMED.