Opinion
Court of Appeals No. A-12612 No. 6803
07-03-2019
MICHAEL KEITH ELLIS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Emily L. Jura, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Scot H. Leaders, District Attorney, Kenai, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3KN-14-01436 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge. Appearances: Emily L. Jura, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Scot H. Leaders, District Attorney, Kenai, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Fabe, Senior Supreme Court Justice, and Andrews, Senior Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
While incarcerated for sexually abusing one of his sons, Michael Keith Ellis admitted to sexually abusing eight of his other children between 1997 and 2009, as well as abusing other children in the community over many years. The day before he was to be released from prison in the first case, the State charged Ellis with eighteen counts of sexual abuse against his other children.
Ellis entered into a partial plea agreement with the State to resolve these charges. He pleaded guilty to three counts of first-degree sexual abuse of a minor (one individual and two consolidated) and one consolidated count of second-degree sexual abuse of a minor. The parties agreed that two aggravators applied — AS 12.55.155(c)(18)(A), the domestic violence aggravator, and AS 12.55.155(c)(18)(B), the same or similar conduct aggravator — and that the parties were free to argue at sentencing what weight should be given to these aggravators. Further, Ellis agreed that the court could consider at sentencing his disclosures regarding sex abuse of other children not named as victims in this case.
The agreement between Ellis and the State also specified what sentencing provisions were applicable to each count. Pre-2005 sentencing law applied to the first-degree sexual abuse of a minor charge in Count I, which called for a presumptive term of 8 years and a maximum sentence of 40 years. Pre-2005 sentencing law also applied to the second-degree sexual abuse of a minor charge in Count XIII, which had no statutory presumptive range or term, but a maximum sentence of 4 years in the absence of an aggravator, and an overall maximum sentence of 10 years. Finally, 2005 sentencing law applied to the two first-degree sexual abuse of a minor charges in Counts IX and XII, which called for a presumptive term of 8 to 12 years each, and a maximum sentence of 99 years each.
See former AS 12.55.125(i)(1)(A) (pre-2005 version). Ellis was considered a first felony offender as to the offenses in this case because the conduct predated his conviction in the case he was incarcerated for when the conduct came to light.
See former AS 12.55.125(d), (k)(2) (pre-2005 versions).
See former AS 12.55.125(i)(1)(A) (2005 version).
In sum, absent reliance on an aggravator, the maximum consecutive sentence the court was authorized to impose was 36 years of unsuspended time.
At sentencing, the superior court found both aggravators, and acknowledged that it was therefore authorized to go above the presumptive ranges. The court found Ellis's offenses to be particuarly serious, given the number of victims, their young age, the fact that the abuse occurred over a long period of time, and involved him exploiting his parental role. The court prioritized isolation and found that a lengthy sentence was necessary to protect the public.
The court ultimately imposed a composite sentence of 95 years with 35 years suspended (60 years to serve). The court's comments indicate that it found both aggravators applicable in fashioning Ellis's sentence. However, at no point did the court explicitly discuss the weight it was giving the aggravators or otherwise explain how the aggravators justified a sentence exceeding the presumptive range. The court also did not explain the factual basis on which it was finding the second aggravator — AS 12.55.155(c)(18)(B).
Each individual count was imposed consecutively: 30 years with 10 years suspended for Count I; 25 years with 10 years suspended for Count IX; 30 years with 10 years suspended for Count XII; and 10 years with 5 years suspended for Count XIII.
On appeal, Ellis seeks a remand for resentencing, arguing that the superior court violated the rule that an "[u]pward . . . adjustment of a presumptive sentence is intended to be appropriate only when statutory factors provide a realistic indication that a case is uncharacteristically aggravated . . . ." Ellis also argues that the superior court improperly relied on conduct for which he had already been sentenced to support the second aggravator — AS 12.55.155(c)(18)(A).
Carlson v. State, 696 P.2d 178, 179 (Alaska App. 1985) (citing Juneby v. State, 641 P.2d 823, 832-33 (Alaska App. 1982)).
The State concedes error and agrees that this case should be remanded to the superior court for further proceedings. We have reviewed the record and we agree that a remand is required.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (an appellate court must independently evaluate any concession of error by the State in a criminal case).
The first aggravating factor that the superior court relied on in this case, AS 12.55.155(c)(18)(A), applies when a defendant commits a felony under AS 11.41 against a spouse, former spouse, or a member of the social unit made up of those living together in the same dwelling as the defendant. Under our decision in Carlson v. State, it was inappropriate for the superior court to increase Ellis's sentence based on this aggravating factor. There, we reasoned that because the underlying crime required that the defendant be the victim's parent, stepparent, or legal guardian, the same-family aggravating factor was "typical of the specific crime for which [the defendant] was charged and therefore did not warrant an increase in the presumptive term." As the State concedes, to the extent that the judge in Ellis's case put additional weight on this aggravator, that was error.
Carlson, 696 P.2d at 179 (citing Juneby, 641 P.2d at 832-33).
Id.
The other aggravating factor at issue here is AS 12.55.155(c)(18)(B), which applies when a defendant commits sexual abuse of a minor and the defendant has "engaged in the same or other conduct" prohibited by AS 11.41.410-.460 with the same or a different victim. Here, although there was evidence before the court of Ellis having committed acts of sexual abuse against other children in the community, the court did not make any findings regarding those events and did not rely on them in imposing sentence. In fact, the court clarified at one point that those acts were not before the court "today." Under these circumstances, the court's use of aggravator (18)(B) to increase Ellis's sentence based on conduct that was apparently already encompassed by the consolidated counts was improper.
See Juneby, 641 P.2d at 832-33; see also Turney v. State, 2013 WL 5209862, at *1-2 (Alaska App. Sept. 11, 2013) (unpublished) (reversing trial court's decision to rely on aggravator (18)(B) when the defendant pleaded guilty to multiple, consolidated counts of sexual abuse of a minor that encompassed the entirety of charges).
We therefore remand Ellis's case for resentencing. On remand, the superior court should reevaluate whether and on what basis a sentence beyond the presumptive range is justified under aggravator (18)(B) and the Chaney criteria.
Lastly, we note that Ellis also argues that his sentence is excessive, and that certain of his probation conditions are improper. Because we are remanding Ellis's case for resentencing, we conclude that it would be premature to decide his excessive sentence claim now. As to Ellis's claims regarding his probation conditions, we note that several of these conditions appear to conflict with recent decisions from this Court. On remand, Ellis can raise these objections.
See Kozevnikoff v. State, 433 P.3d 546, 547 (Alaska App. 2018) (holding that probation conditions requiring defendants to take medication prescribed by a doctor must be subjected to special scrutiny); Gardner v. State, 2018 WL 6418086, at *4 (Alaska App. Dec. 5, 2018) (unpublished) (vacating condition of probation requiring plethysmograph testing after concluding it was plain error for judge to impose this condition without applying special scrutiny); Smith v. State, 349 P.3d 1087, 1095 (Alaska App. 2015) (vacating probation condition requiring defendant to inform all persons with whom he has a "significant relationship" or with whom he is "closely affiliated" of his sex offending history, concluding that these terms were unconstitutionally vague); Simants v. State, 329 P.3d 1033, 1038 (Alaska App. 2014) (holding that special scrutiny is required for conditions that infringe on a defendant's family associations); Dunder v. State, 2009 WL 1607917, at *1 (Alaska App. June 10, 2009) (unpublished) (concluding that prohibiting internet access could be reasonable only if the condition allows a probation officer to allow necessary internet use under appropriate conditions); see also AS 12.55.100(c) (requiring judgments to specify the maximum period of residential treatment); Christensen v. State, 844 P.2d 557, 558 (Alaska App. 1993) (vacating probation condition requiring residential treatment when no maximum length was specified).
Conclusion
This case is REMANDED for resentencing in light of the guidance provided in this decision.