Opinion
A-13429
11-17-2021
AUSTIN MATTHIAS, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Second Judicial District, Nome, Trial Court No. 2UT-17-00046 CR Romano D. DiBenedetto, Judge.
Appearances:
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, 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.
SUMMARY DISPOSITION
Austin Matthias was convicted, following a jury trial, of two counts of first-degree sexual assault. The jury found Matthias guilty of penetrating the victim's anus with both his penis and his fist, causing serious physical injury to the victim.
AS 11.41.410(a)(1). Matthias was also found guilty of first-degree assault. AS 11.41.200(a)(2). At sentencing, the trial court merged this assault count with the sexual assault convictions.
At trial, Matthias asserted the affirmative defense of duress. Matthias testified that his employer, Julia Haworth, was a bootlegger and drug dealer who threatened to harm and kill Matthias's wife unless Matthias carried out the sexual assault. Matthias testified that he was coerced to commit the sexual assaults by these threats against his wife. Matthias also claimed that the victim had consented to the penetrations. The jury rejected both defenses.
In addition to finding Matthias guilty of the charged offenses, the jury also found three aggravating factors: (1) Matthias's conduct manifested "deliberate cruelty;"(2) Matthias's conduct was among the "most serious" included in the definition of the offense; and (3) Matthias committed one of the offenses (the penile penetration) as part of an agreement that he would be compensated for committing the offense.
AS 12.55.155(c)(2).
AS 12.55. 155(c)(10).
AS 12.55.155(c)(11). The juryheard testimony that Haworthhad promised to forgive Matthias's debt to her as compensation for Matthias anally raping the victim. The jury also heard that when Haworth told Matthias to rape the victim, she had expected Matthias to use his penis but did not expect Matthias to use his fist or to cause serious physical injury to the victim.
As a first felony offender, Matthias faced a presumptive range of 20 to 30 years' imprisonment for each first-degree sexual assault conviction. The trial court was required, under AS 12.55.127(c)(2)(E), to impose at least one-fourth of the presumptive term of one count consecutive to the other count. The court was also authorized to impose up to 99 years on each count based on the aggravating factors.
AS 12.5 5.125(i)(1)(A)(ii).
AS 12.55.125(i)(1), AS 12.55.155(c).
At sentencing, Matthias argued that his conduct was mitigated under AS 12.55.155(d)(3) - that he "committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected his conduct." In support of this proposed mitigating factor, Matthias relied on his trial testimony that, a few days before the incident, Haworth had threatened that something might happen to his wife if he did not rape the victim. Matthias also relied on threats Haworth had made against Matthias during the pretrial proceedings in this case when the parties were involved in plea negotiations.
The prosecutor argued against the mitigator, pointing to the jury's finding that Matthias had engaged in the penile penetration as part of an agreement for financial gain. The prosecutor also pointed to trial testimony that Haworth had offered to forgive Matthias's debt to her if he anally raped the victim and that Matthias had agreed to do so after thinking about it for approximately ten to fifteen minutes.
The trial court rejected the proposed mitigator and sentenced Matthias to consecutive sentences of 40 years with 20 years suspended (20 years to serve) on each count for a composite sentence of 80 years with 40 years suspended (40 years to serve).
Matthias now appeals, raising two claims of error.
Matthias argues first that the trial court erred when it rejected his proposed duress mitigating factor. According to Matthias, the trial court erroneously rejected the proposed mitigating factor because the trial court believed (mistakenly) that duress could never be a defense to sexual assault. We acknowledge that, at sentencing, the trial court made remarks that could be construed in the manner Matthias claims. But other remarks demonstrate that the trial judge considered and rejected the mitigating factor based on the evidence presented and not as a matter of law. Moreover, we note that the judge instructed the jury on the affirmative defense of duress. These other comments and the instruction unambiguously demonstrate that the trial court understood that duress could be a defense to sexual assault.
We have reviewed the record as a whole, and we conclude that the evidence supporting the mitigating factor was extremely weak and was insufficient to establish the mitigating factor by clear and convincing evidence. We accordingly conclude that the trial court did not err in rejecting the duress mitigating factor.
Matthias's second argument on appeal is that the trial court erred when it imposed the same sentence for each sexual assault and then ran that time fully consecutively. Matthias claimed in his opening brief that the trial court erroneously believed that because each penetration constituted a separate crime, the sentences were required to run consecutively. But, as Matthias's appellate attorney acknowledged at oral argument, the record at sentencing actually demonstrates that the trial court was well aware that it was only required to run one-fourth of the presumptive range of the second count consecutive to the first count under AS 12.55.127(c)(2)(E).
Matthias also argues that the fully consecutive sentences violate a sentencing principle that we articulated in State v. Andrews - i.e., that "[a] person who commits ten sexual assaults should, consistent with the guidelines established in AS 12.55.005, receive a more severe sentence than a person convicted of a single incident, but he should not be punished ten times as severely." We agree with Matthias that it would be error for a trial court to simply impose twice the term of imprisonment because there were two separate penetrations in this case. But we do not agree with Matthias that the trial court did this. Indeed, the trial court made remarks that distinguished between the two penetrations, finding one more brutal and degrading than the other. The record reflects that the court's overall purpose in imposing consecutive sentences was to ensure that the sentences it imposed reflected the highly aggravated nature of this case, as well as the concomitant need for isolation of the offender and specific deterrence. Given this, we conclude that our review should likewise be focused on whether the composite sentence the court reached was clearly mistaken rather than on the exact apportionment of each sentence.
State v. Andrews, 707 P.2d 900, 910 (Alaska App. 1985).
Generally, when a defendant contends that their sentence is excessive, we review the composite sentence rather than the individual sentences for the separate counts. Here, it is not clear that Matthias is making an excessive sentence claim. But assuming that he is raising such a claim, we conclude that, given the extreme facts of this case, the sentence imposed was within the "permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify."
See, e.g., Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000) ("[B]ecause our decision is based on the defendant's conduct as a whole, we do not require that each specific sentence imposed for a particular count or offense be individually justifiable as if that one crime were considered in isolation.").
McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
Accordingly, we reject Matthias's claims of error on appeal and AFFIRM the judgment of the superior court.