Opinion
A-13617
03-13-2024
MICHAEL KEITH ELLIS, Appellant, v. STATE OF ALASKA, Appellee.
Julia Bedell, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Kenai, Trial Court No. 3KN-14-01436 CR Jason M. Gist, Judge.
Appearances:
Julia Bedell, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
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. The day before Ellis was to be released from prison, the State charged him with eighteen counts of sexual abuse against his other children.
Ellis v. State, 2019 WL 2880985, at *1 (Alaska App. July 3, 2019) (unpublished).
Ellis entered into an open plea agreement 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. As part of the plea agreement, the parties agreed that the 2005 sentencing laws would be applied to two of the counts, and the pre-2005 sentencing laws would apply to the remaining two counts. This meant that if the court found any aggravating factors, Ellis faced a maximum composite sentence of 258 years to serve.
Id.; see also former AS 12.55.155(a)(2) (pre-2005) ("[T]he court . . . may increase the presumptive term up to the maximum term of imprisonment for factors in aggravation."); AS 12.55.155(a)(2) (post-2005) ("[T]he court . . . may increase the active term of imprisonment up to the maximum term of imprisonment for factors in aggravation.").
Ellis was originally sentenced to a composite sentence of 95 years with 35 suspended, or 60 years to serve. But Ellis appealed his sentence to this Court, and we remanded for further proceedings because the sentencing court improperly relied on one aggravating factor (AS 12.55.155(c)(18)(A) (against a household member)) and failed to make findings sufficient to justify its reliance on another aggravating factor (AS 12.55.155(c)(18)(B) (same or similar prohibited conduct)).
Ellis, 2019 WL 2880985, at *2.
On remand, the court made additional findings to justify the (c)(18)(B) aggravating factor. On the three first-degree sexual abuse of a minor counts, it imposed sentences of 30 years with 10 years suspended, 25 years with 10 years suspended, and 30 years with 10 years suspended, and on the second-degree sexual abuse of a minor count, it imposed a sentence of 9 years with 5 years suspended. Each sentence was imposed consecutively, so Ellis received a composite sentence of 94 years with 35 years suspended (59 years to serve). Ellis now appeals, arguing that his sentence is excessive.
Before addressing Ellis's arguments, however, we must address the State's argument that this Court lacks jurisdiction to hear Ellis's excessive sentence claim.
This Court has jurisdiction to hear excessive sentence claims for felony sentences exceeding two years "unless the sentence was imposed in accordance with a plea agreement under the applicable Alaska Rules of Criminal Procedure and that agreement provided for imposition of a specific sentence or a sentence equal to or less than a specified maximum sentence." In Simon v. State, we explained that this Court retains jurisdiction unless the parties "bargained for" a sentencing range that is narrower than the range that would apply at open sentencing on the pleaded-to charge. Here, Ellis pleaded guilty to conduct that spanned over multiple years. The plea agreement specified which sentencing laws applied to each count (2005 or pre-2005), but otherwise left sentencing open to the court. Under these circumstances, the parties did not bargain for a narrower sentencing range than was authorized by statute. Rather, they agreed to which sentencing laws (2005 or pre-2005) would apply at open sentencing. This Court therefore maintains jurisdiction over Ellis's appeal.
AS 12.55.120(a); AS 22.07.020(b); see also Alaska R. App. P. 215(a)(1).
Simon v. State, 121 P.3d 815, 821-22 (Alaska App. 2005).
See id.
See id.; see also AS 22.07.020(b); AS 12.55.120(a).
Turning to Ellis's excessive sentence claim, when this Court reviews an excessive sentence claim, it "independently examine[s] the record to determine whether the sentence is clearly mistaken." The "clearly mistaken" standard "contemplates that different reasonable judges, confronted with identical facts, will differ on what constitutes an appropriate sentence, and that a reviewing court will not modify a sentence that falls within a 'permissible range of reasonable sentences.'"
Morrissette v. State, 524 P.3d 803, 807 (Alaska App. 2023).
Id. (quoting Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997)).
Ellis argues that his sentence is excessive on two grounds. First, Ellis argues that the court should not have used his disclosure during sex offender treatment of additional acts of sexual abuse as a reason to impose a lengthy sentence. Ellis asserts that his participation in sex offender treatment and those disclosures were indicative of his rehabilitative potential, not his need for isolation.
Ellis's disclosure during sex offender treatment of numerous additional acts of sexual abuse was a complicating fact for sentencing purposes: it indicated a potential for rehabilitation, but it also established the existence of a lengthy and disturbing history of abuse. The sentencing court acknowledged these complications when it noted that rehabilitation was an important factor, and that Ellis had made "considerable progress" during sex offender treatment, but nonetheless concluded that Ellis's forty-year history of sexually abusing children meant that his prospects for rehabilitation were "guarded." We conclude that the superior court's evaluation of these complicated facts was not clearly mistaken.
See id. As part of this argument, Ellis also contends that his sentence far exceeds the benchmark set out in State v. Andrews, 707 P.2d 900, 913, 916-17 (Alaska App. 1985). But the sentencing court addressed this argument below and noted that there were many significant differences between this case and Andrews: Andrews was a teacher's aide abusing his students, not a parent abusing his children; Ellis abused many more children over a much longer period of time; and Ellis's victims were much younger, often babies. See id. at 903-04. We agree with the superior court that Ellis's conduct went "far beyond" the conduct at issue in Andrews and those differences justified the imposition of a harsher sentence.
Second, Ellis argues that his overall sentence is excessive because the court should not have imposed his sentences consecutively. "[W]hen we review a composite sentence imposed for two or more crimes, we do not address each individual sentence in isolation." "Rather, we address whether the composite sentence as a whole is clearly mistaken, given the entirety of the defendant's conduct and history."
Baines v. State, 535 P.3d 899, 909 (Alaska App. 2023).
Id. (first citing Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); and then citing Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987)).
We conclude the composite sentence imposed here was not clearly mistaken. Although Ellis pleaded guilty to four counts of sexual abuse of a minor, three of these counts were consolidated counts that represented Ellis's lengthy history of abusing eight of his own children. This abuse often started when the children were only babies and usually continued until they were around four years old, although in some cases it extended well beyond that. Additionally, although the charged conduct encompassed Ellis's abuse of eight of his children, the sentencing court noted that Ellis had admitted to abusing all sixteen of his children, and to sexually molesting numerous other children, including ones with Down syndrome, when he worked as an ambulance driver in Anchorage.
See id.
Ellis's history of sexually abusing children spanned over forty years, essentially all of his adult life. He abused numerous children, including all sixteen of his own, and he tended to target particularly vulnerable victims, including babies and children with developmental disabilities. Under these circumstances, the superior court's composite sentence of 59 years to serve was not clearly mistaken.
See Morrissette v. State, 524 P.3d 803, 807 (Alaska App. 2023).
The judgment of the superior court is AFFIRMED.