Opinion
A-12604 0377
06-19-2024
CLAUDE EDWARD FOWLKES III, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Barber Legal Services, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Eric A. Ringsmuth, 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UNPUBLISHED See Alaska Appellate Rule 214(d)
SUMMARY DISPOSITION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge. Trial Court No. 4FA-14-01758 CR
Michael L. Barber, Barber Legal Services, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
This case returns to us following a remand for resentencing. A jury found Claude Edward Fowlkes III guilty of first-degree sexual assault, first-degree sexual abuse of a minor, and second-degree sexual abuse of a minor for sexually assaulting a fourteen-year-old boy Fowlkes formerly mentored at a junior high school. At Fowlkes's original sentencing, the superior court merged the jury's guilty verdicts for first-degree sexual assault and second-degree sexual abuse of a minor, but did not merge the guilty verdict for first-degree sexual abuse of a minor. The court sentenced Fowlkes to a composite term of 35 years to serve. On appeal, we held that the court should have also merged the first-degree sexual abuse of a minor guilty verdict, and we remanded the case to the superior court for resentencing on a single count of first-degree sexual assault.
AS 11.41.410(a)(1), AS 11.41.434(a)(3)(B), and AS 11.41.436(a)(1), respectively.
Fowlkes v. State, 2021 WL 3076856, at *3-4, *6 (Alaska App. July 21, 2021) (unpublished). As we noted in our prior opinion, the State elected to enter a single merged conviction for first-degree sexual assault, rather than a single merged conviction for sexual abuse of a minor. Id. at *1.
On remand, the resentencing was held jointly with the resentencing in another case involving multiple instances of sexual abuse of a minor against a different student. At the resentencing hearing, the superior court denied Fowlkes's request to refer his case to the three-judge sentencing panel, rejected Fowlkes's assertion that the "least serious" mitigating factor applied, and sentenced Fowlkes to 30 years with 10 years suspended (20 years to serve) (the minimum active sentence within the applicable presumptive range).
AS 12.55.155(d)(9).
AS 12.55.125(i)(1)(A)(ii).
Fowlkes now appeals his sentence. He raises three issues on appeal.
Fowlkes first argues that the superior court erred in rejecting his request to refer his case to the three-judge sentencing panel. "We consider the totality of the circumstances in determining whether the sentencing court erred in not referring the case to a three-judge panel." Fowlkes sought referral on two separate grounds: that he had proven the non-statutory mitigating factor of extraordinary potential for rehabilitation, and that a sentence within the presumptive range would be manifestly unjust.
Manrique v. State, 177 P.3d 1188, 1193 (Alaska App. 2008).
AS 12.55.165(a).
With respect to extraordinary potential for rehabilitation, the superior court rejected this ground because it found that Fowlkes had, at best, demonstrated ordinary potential for rehabilitation. The court noted that Fowlkes's own expert had placed Fowlkes in the "average" risk category of reoffending, and that there were ongoing concerns about Fowlkes's minimization of his conduct, notwithstanding his successful completion of a number of prison programs. We have reviewed the record, and we find no error in the superior court's rejection of the non-statutory mitigating factor of extraordinary potential for rehabilitation.
With respect to whether a sentence within the presumptive range would be manifestly unjust, the superior court rejected this ground based largely on the seriousness of the conduct, which it described as a "forceful" and "painful" rape of an "extremely vulnerable victim." The court also emphasized Fowlkes's prior role as the victim's mentor, and the abuse of trust that the assault represented.
Fowlkes argues that the superior court's description of the victim as an "extremely vulnerable victim" means that the court erroneously found the related Blakely aggravating factor. See AS 12.55.155(c)(5). But the record is clear that the court did not find any aggravating factors in this case and did not impose an aggravated sentence on Fowlkes. Contrary to Fowlkes's argument on appeal, the court was permitted to take account of the vulnerability of the victim without having to find the aggravating factor.
Fowlkes challenges this ruling on appeal on the ground that the court failed to conduct a full analysis of the Chaney sentencing factors. But the record shows that the court considered the Chaney criteria and concluded they could only be satisfied by a sentence within the presumptive range. Fowlkes also claims that it was inappropriate for the superior court to find that the victim was likely to suffer a "lifetime of psychological harm" as a result of Fowlkes's conduct because there was nothing directly in the record about the victim's psychological status. But the superior court made clear that it was only speaking generally about the harm that sexual assault causes children in response to a perceived argument by Fowlkes's attorneys that the victims in both cases had not suffered psychological harm.
Next, Fowlkes argues that the court erred in rejecting his proposed statutory mitigating factor - AS 12.55.155(d)(9) (defendant's conduct was "among the least serious" included in the definition of the offense). Specifically, Fowlkes argues that the court erred in considering that the victim was fourteen years old and that Fowlkes gained access to the victim through his role as the victim's former mentor. We disagree. Both of these facts are relevant to whether Fowlkes's conduct in sexually assaulting the victim qualified as "among the least serious" conduct included in the definition of first-degree sexual assault.
Finally, Fowlkes claims that the superior court's sentencing decisions were "improperly guided by emotion" and "not a careful consideration of the Chaney criteria." We again disagree. The record demonstrates that the superior court conducted a thorough and careful analysis of the Chaney criteria, and that its sentencing findings are well-supported and based on proper considerations. Having independently reviewed the record, we conclude that the sentence imposed - which was at the low end of the presumptive range - is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (adopting the "clearly mistaken" test for review of excessive sentence claims).
The judgment of the superior court is AFFIRMED.