Opinion
Court of Appeals No. A-9903.
February 13, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Kari C. Kristiansen, Judge, Trial Court No. 3PA-05-1960 CR.
Larry A. Wiggins, Office of LAWiggins, Attorney, LLC, Palmer, for the Appellant. Rachel K. Gernat, Assistant District Attorney, Palmer, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
William W. McKechnie was convicted of one count of possessing child pornography and one count of felony indecent viewing or photography. He contends that his sentence, a composite term of 4 years with 12 months suspended imposed by the the superior court, is excessive. Because McKechnie's sentence is not clearly mistaken, we reject McKechnie's claim that the composite term is excessive.
AS 11.61.127 and AS 1 11.61.123(f)(1), respectively.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
Background facts and proceedings
On May 1, 2005, McKechnie's girlfriend contacted the Wasilla police department after she found files on McKechnie's laptop computer that were unmistakably child pornography. The police obtained a search warrant for McKechnie's computer and related material, and seized the evidence when the warrant was executed. When interviewed shortly thereafter, McKechnie told the police that he was "very, very ashamed" and that the police would find "movies of kids and underage people" and "child pornography" on the computer. He admitted that he knew that some of the girls depicted on the computer were underage, and that he sometimes used the child pornography for sexual arousal.
Investigator Chris Thompson of the Alaska State Troopers' Computer and Financial Crimes Unit located files containing five still images and twenty-two video clips of child pornography on McKechnie's computer. The video files showed children engaging in sexual activity either alone or with adult males.
Investigator Ruthan Josten of the Wasilla police department reviewed video tapes seized from McKechnie's home. She discovered that one recording included a section that showed a woman preparing two children, a female of about eight years of age and a male toddler, for a bath. The genitals of both children were recorded on the videotape.
Investigator Josten showed the videotape to McKechnie's girlfriend and she identified herself and her two children on the tape. She told Josten that she did not know that she and her children had been videotaped. The police interviewed McKechnie again, and he agreed that his girlfriend did not know that he videotaped the children.
The State charged McKechnie with several counts, but the State and McKechnie reached a charge agreement. McKechnie pleaded no contest to one count of possession of child pornography and one count of felony indecent viewing or photography (for producing the videotape showing the genitals of his girlfriend's children), and the State dismissed all other counts. Under former AS 12.55.125(i)(4)(A) (2005 version), McKechnie faced a presumptive range of 1 to 2 years' imprisonment for possession of child pornography. Under AS 12.55.125(e)(1), McKechnie faced a presumptive range of 0 to 2 years' imprisonment for felony indecent viewing or photography. There were no statutory aggravating or mitigating factors alleged.
The superior court imposed a 2-year term for possession of child pornography. The court imposed a 2-year term with 12 months suspended for indecent viewing or photography, all consecutive to the child pornography count. Thus, McKechnie received a composite 4-year term with 12 months suspended, a net 3-year term to serve. McKechnie appeals. Discussion
First, McKechnie argues that the 3-year composite term to serve violates the Neal/Mutchsler rule, a sentencing rule announced by the Alaska Supreme Court providing that a sentencing judge should not impose consecutive sentences totaling more than the maximum sentence for a defendant's most serious offense unless the sentencing judge expressly finds that such a sentence is necessary to protect the public. But the Neal/Mutchsler rule only applies if the court imposes a term to serve in excess of the maximum term for a defendant's most serious offense. Here, the maximum term for possession of child pornography under former AS 12.55.125(i)(4) was 10 years' imprisonment. Because the superior court imposed a composite term to serve that was substantially less than the 10-year maximum for possession of child pornography, the Neal/Mutchsler rule does not apply.
See Neal v. State, 628 P.2d 19, 21 (Alaska 3 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
McKechnie also argues that the superior court findings do not justify the imposition of a composite term to serve greater than the presumptive term for the defendant's most serious crime. The rule announced in Farmer v. State provides that "When an offender is convicted of multiple crimes, the presumptive term for the most serious crime [is] an important benchmark . . . that is not to be exceeded without good reason."
746 P.2d 1300 (Alaska App. 1987).
Id. at 1301.
McKechnie maintains that the superior court had to find that it was necessary to protect the public in order to exceed the presumptive term for a single count. But even assuming that the rule in Farmer has continued viability after the legislature's substantial revision of presumptive sentencing in March 2005, Farmer requires only that there be a "good reason" for the judge's decision to impose the consecutive sentences that exceed the presumptive term.
See Sherman v. State, Alaska App. Memorandum 6 Opinion and Judgment No. 5177 at 3-4, (Feb. 21, 2007) 2007 WL 518627 at *2.
The superior court's sentencing remarks show that when the court considered the sentencing criteria in AS 12.55.005, the court found that McKechnie's offenses were most serious compared to other offenses. Although charged with only one count of possession of child pornography, McKechnie's computer contained more than twenty separate files with video clips of child pornography in addition to the still images. Each separate file or image could support a separate count. In addition, without permission, McKechnie produced a video recording of his girlfriend's minor children that displayed the children's genitals. The court also found that McKechnie had a "serious problem" because he was sexually aroused by the content of the images.
See State v. Parker, 147 P.3d 690, 693, 696 (Alaska 2006).
Considering the court's sentencing remarks as a whole, we conclude that the court expressed sufficient good reason to impose a composite term to serve in excess of the presumptive sentencing range for the most serious count.
Even so, we must remand the case to the superior court for further proceedings. As we noted above, the presumptive range that applied to McKechnie's count of possession of child pornography was 1-2 years' imprisonment, and the presumptive range applying to the count of felony incedent viewing or photography was 0-2 years' imprisonment. However, the presentence report prepared for sentencing asserted that McKechnie faced a presumptive sentencing range of 1-2 years for each count. At sentencing, McKechnie's attorney also told the court that McKechnie was "facing one year on each count." The prosecutor did not express any contrary analysis of the presumptive range that applied for the felony indecent viewing or photography count, nor did the court in its sentencing remarks.
Although it appears that the court considered the composite term that it imposed to be an appropriate sentence, it is not clear that the court understood that the presumptive range for McKechnie's charge of felony indecent viewing or photography was 0-2 years' imprisonment, not 1-2 years' imprisonment as reflected in the presentence report and the comment of McKechnie's attorney. Accordingly, we will remand the case to the superior court for the court to reconsider the sentence.
Conclusion
We reject McKechnie's arguments that the composite term imposed is excessive. However, we remand the case to the superior court to reconsider McKechnie's sentence in light of the presumptive range of 0-2 years' imprisonment that applies to felony indecent viewing or photography. We do not retain jurisdiction.