Opinion
Court of Appeals No. A-11164 Trial Court No. 3AN-09-7412 CR No. 5947
05-08-2013
JOHN BRYAN HERRING, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Kevin T. Fitzgerald, Ingaldson, Maassen, & Fitzgerald, P.C., Anchorage, for the Appellant. Eric A. Ringsmuth, 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: Kevin T. Fitzgerald, Ingaldson, Maassen, & Fitzgerald, P.C., Anchorage, for the Appellant. Eric A. Ringsmuth, 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.
Judge BOLGER, dissenting.
In June 2009, John Bryan Herring abducted and repeatedly raped his ex-wife. Based on this conduct, Herring was indicted for kidnapping and several counts of first- and second-degree sexual assault. The case was ultimately resolved by a plea bargain: Herring pleaded guilty to one count of first-degree sexual assault, and the State dismissed the other charges.
Because Herring was a first felony offender, he faced a presumptive sentencing range of 20 to 30 years' imprisonment for the offense of first-degree sexual assault.
AS 12.55.125(i)(1)(A).
Herring conceded two aggravating factors under AS 12.55.155(c): (c)(1) (that the victim suffered physical injury), and (c)(18)(A) (that Herring's offense was committed against an ex-spouse). Because of these aggravating factors, the superior court was authorized to impose a sentence of up to 99 years' imprisonment.
AS 12.55.125(i) and AS 12.55.155(a)(2).
Herring proposed one mitigating factor under AS 12.55.155(d): (d)(3) (that his conduct was significantly affected by some degree of duress, coercion, or compulsion). Herring also proposed the non-statutory mitigating factor of extraordinary potential for rehabilitation. The superior court found that Herring had failed to prove either of these proposed mitigators.
The superior court also rejected Herring's argument that, given the facts of his case, the applicable presumptive range of 20 to 30 years' imprisonment was manifestly unjust, and that therefore his case should be referred to the statewide three-judge sentencing panel under AS 12.55.165.
Having made these findings, the superior court sentenced Herring to 35 years' imprisonment with 14 years suspended — 21 years to serve. Herring now appeals this sentence.
Herring makes three arguments on appeal. First, he contends that the superior court should have found mitigating factor AS 12.55.155(d)(3) (duress, coercion, or compulsion). Second, Herring argues that the superior court should have found the non-statutory mitigating factor of extraordinary potential for rehabilitation. And third, Herring argues that if neither of these mitigators applies, so that the lowest sentence he could receive was the 20-year bottom of the applicable presumptive range, then the superior court should have referred his case to the three-judge sentencing panel on the ground that this applicable presumptive range was manifestly unjust under the facts of his case.
For the reasons explained in this opinion, we affirm the superior court's ruling on mitigator (d)(3), but we direct the superior court to reconsider Herring's other two arguments in light of our recent decision in Collins v. State, 287 P.3d 791 (Alaska App. 2012).
Underlying facts
In April 2009, Herring and his then-wife, J.R., divorced. On the morning of June 30, 2009, Herring purchased duct tape, a bag of zip ties, a container of lubricating jelly, and a box of tampons. Later that day, when J.R. stopped by Herring's house to pick up some sports equipment for their son, Herring assaulted J.R. — strangling her until she lost consciousness, and binding her with the zip ties and the duct tape. Herring drove J.R. to a secluded area of the Anchorage hillside. There, over the course of more than an hour, Herring raped her three times. Herring eventually allowed J.R. to get out of the vehicle to urinate. While she was outside the vehicle, she flagged down a passing motorist and escaped.
While J.R. was being treated by medical personnel and interviewed by the police, Herring (who was still at large) sent text messages to J.R. saying that he did not want to spend 25 years in prison for what he had done to her. Herring justified his actions by asserting that J.R. had slept with someone else while they were still married. Herring then encouraged J.R. to remarry him, so that she would not have to testify against him.
Herring was forty years old when he committed this crime. According to J.R.'s testimony at the sentencing hearing, Herring's first wife left him after he attacked her. (No charges were brought.) Herring's subsequent relationship with J.R. was also marked by violence. At one point, J.R. obtained a restraining order against Herring. In 2008, Herring used a pipe wrench to destroy J.R.'s laptop computer. And Herring warned J.R. that she should "sleep with one eye open".
In May 2009 (the month following their divorce), J.R. suspected that Herring gave her a "roofie" (i.e., a date-rape drug) and took digital photos of her naked body that while she was unconscious. When J.R. later confronted Herring about this, he promised that he would delete the photos and never touch her again.
Following Herring's divorce from J.R., Herring sought treatment for anxiety and depression — first at Providence Alaska Medical Center, and then at a treatment facility in Arizona. Against medical advice, Herring left the Arizona facility on June 25, 2009. Five days later, he kidnapped and raped J.R..
Herring's argument that the superior court should have found mitigator (d)(3)
Under AS 12.55.155(d)(3), a felony is mitigated if "the defendant committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected the defendant's conduct[.]" It is the defendant's burden to prove this mitigating factor by clear and convincing evidence.
AS 12.55.155(f).
In the present case, Herring contends that he proved that his conduct was the result of "internal compulsion". According to Herring, this internal compulsion was the product of the stress of his divorce, his loss of custody of his son, his ambivalent relationship with J.R., and his underlying anxiety and depression.
This Court has repeatedly held that, to establish mitigator (d)(3), a defendant must show that they were subjected to a type of duress, coercion, or compulsion "sufficiently extraordinary [in] nature that it approaches being a defense to the crime." In both Lee v. State, 673 P.2d 892 (Alaska App. 1983), and Smith v. State, 229 P.3d 221 (Alaska App. 2010), we clarified this principle as it relates to claims of "internal" compulsion.
Darroux v. State, 265 P.3d 348, 352 (Alaska App. 2011), citing Proctor v. State, 236 P.3d 375 (Alaska App. 2010), and Bynum v. State, 708 P.2d 1293, 1294 (Alaska App. 1985).
In Lee, the defendant claimed that he was entitled to the benefit of mitigator (d)(3) because he shot a police officer under an "internal" compulsion arising from his financial difficulties, his troubled domestic situation, his intoxication, and the fact that he had an impulsive personality and was easily provoked. We rejected that argument, holding that mitigator (d)(3) does not apply to cases where the defendant's behavior "[was] merely impulsive or the result of situational stress". We also suggested in Lee that a finding of "compulsion" would be improper in the absence of "evidence indicating that [the defendant] acted out of a mistaken belief that his conduct was necessary."
Lee, 673 P.2d at 896.
Ibid.
Ibid. See also Helton v. State, Alaska App. Memorandum Opinion No. 907 (September 11, 1985), 1985 WL 1078077 at *1-2 (suggesting that the defendant might have established the (d)(3) mitigator if he had shown that he "subjectively, though unreasonably," believed that the existing circumstances required him to commit the alleged robbery), and Hause v. State, Alaska App. Memorandum Opinion No. 557 (April 14, 1984), 1984 WL 908443 at *2 (noting that the defendant failed to establish "an actual, good faith belief" that his escape from prison was necessary).
We returned to this topic in Smith, where we held that mitigator (d)(3) does not apply to crimes that stem from purely emotional "compulsions" — i.e., "compulsions" that arise from "overmastering emotion or passion".
Smith, 229 P.3d at 227.
In the present case, we assume that Herring presented sufficient evidence to establish a significant connection between his marital and emotional problems and his decision to kidnap and rape his ex-wife. But as our decisions in Lee and Smith make clear, it was not enough for Herring to show that his offense was significantly affected by a confluence of situational stress and underlying emotional or psychological problems.
Rather, to establish mitigator (d)(3), Herring had to show that he was subjected to compulsive circumstances so "extraordinary in nature and so significant" that these circumstances came close to justifying his offense. And as part of this showing, Herring had to prove that the circumstances led him to believe (even if unreasonably) that it was necessary to kidnap and rape J.R..
Herring failed to make this showing, even if we were to construe the evidence in the light most favorable to him. But we are required to construe the evidence in the light most favorable to the superior court's ruling. Accordingly, we affirm the superior court's decision that Herring failed to prove mitigator (d)(3).
Darroux v. State, 265 P.3d 348, 351 (Alaska App. 2011); Andrew v. State, 237 P.3d 1027, 1050 (Alaska App. 2010).
Herring's alternative claims (1) that he has an extraordinary potential for rehabilitation, or, if not, (2) that even a sentence of 20 years to serve would be manifestly unjust
As we explained toward the beginning of this opinion, Herring presents two other claims in this appeal. Herring argues that the superior court committed error when the court rejected his proposed non-statutory mitigator of extraordinary potential for rehabilitation. And in the alternative, Herring argues that, given the facts of his case, even a sentence at the bottom of the applicable presumptive range (that is, a sentence of 20 years to serve) would be manifestly unjust, and that therefore his case should have been referred to the statewide three-judge sentencing panel under AS 12.55.165.
At the sentencing hearing in this case, the judge declared that there was "significant evidence" indicating that Herring's crimes were "a one-off event", and also indicating that Herring had "a high potential for rehabilitation". The judge stated that he personally did not believe that "the situation would occur again", and that he thought it was "a close call" whether Herring's case should be referred to the three-judge panel. Nevertheless, the judge concluded that he did not know precisely "why this all happened", and for this reason the judge declined to refer Herring's case to the three-judge panel.
Given the judge's findings, and given this Court's recent decision in Collins v. State, 287 P.3d 791 (Alaska App. 2012), we believe that we should remand Herring's case to the superior court for reconsideration of whether Herring's case should be referred to the three-judge panel.
Our decision in Collins significantly altered the law in this area. We held in Collins that, in prosecutions for sexual felonies, a defendant's case can be referred to the three-judge panel if the defendant shows, by clear and convincing evidence, "either that the defendant does not have a history of unprosecuted sexual offenses, or that the defendant has prospects for rehabilitation which, in other offenders, would be considered 'normal' (or 'good')." Id. at 797.
In light of Collins, we conclude that the superior court should reconsider Herring's arguments concerning his potential for rehabilitation and the alleged manifest injustice of any sentence within the applicable presumptive range. We accordingly vacate the superior court's rulings on these issues, and we remand Herring's case to the superior court for reconsideration.
Conclusion
The superior court's rejection of proposed mitigator (d)(3) is AFFIRMED. The superior court's other two rulings — the ruling regarding the non-statutory mitigator of extraordinary potential for rehabilitation, and the ruling regarding the alleged manifest injustice of any sentence within the applicable presumptive range — are VACATED, and the superior court is directed to reconsider those rulings in light of our decision in Collins. We retain jurisdiction of this case for this purpose.
The superior court shall issue its rulings on these two issues within 90 days of the issuance of this opinion. If more time is required, the superior court is authorized to ask this Court for an extension of this deadline.
After the superior court issues its rulings on these two remaining issues, this Court will give the parties an opportunity (1) to ask for transcription of any new proceedings in the superior court, and (2) to file supplemental briefs responding to the superior court's rulings. BOLGER, Judge, dissenting.
This case demonstrates the difficulty with the approach that this court adopted in Collins v. State. The statute we are applying suggests that a case should be referred to the three-judge panel only for "extraordinary circumstances" that would render the presumptive sentencing range a "manifest injustice." I dissent for the reasons stated in my dissenting opinion in Collins.
287 P.3d 791 (Alaska App. 2012).
AS 12.55.165.
287 P.3d at 797-99 (Bolger, J., dissenting).
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