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115 P.3d 517

Michael v. State

Alaska Supreme Court

Decided June 9, 2005

Alaska Supreme Court · decided 2005-06-09

Key passage — most relied on by later courts

“By any realistic measure, Michael's overall conduct ranks among the least serious within the class of defendants actually convicted of first-degree sexual assault.”

quoted by 2 later decisions, including Simants v. State, Linscott v. State

“We hold that the correct standard of review of a' superior court's application of statutory aggravating and "mitigatihg factors to a given set of facts is de novo review. The existence of non-existence of an aggravating or mitigating factor is a mixed question of law and fact. The determination of whether the defendant's conduct is among the least serious conduct within the definition of the offense involves a two-step process: the court must (1) assess the nature of the defendant's conduct, [which is] a factual finding, and then (2) make the legal determination of whether that conduct falls within the statutory standard of "among the least serious conduct within the definition of the offense." Any factual findings made by the court regarding the nature of the defendant's conduct are reviewed for clear error, but whether those facts establish that the conduct "is among the least serious" under AS 12.55. 155(d)(9) is a legal question.”

quoted by 1 later decision, including Meyer v. State

Relies on Benboe v. State · Rudden v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2005-06-09

How this case has been cited

Cited by 26 later decisions — most recently June 2024 · most notably Johnson v. State (2014), Simon v. State (2005)

26 state decisions

160200520102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

BRYNER, Chief Justice,

¶1concurring; MATTHEWS, Justice, joins only in paragraphs 1 and 2 of the concurrence.

¶21. I join in the portion of the court’s order holding that the de novo standard of review applies in determining whether the “least-serious-conduct” statutory mitigating factor has been established under the undisputed facts of this case and with the portion of the order directing Michael’s release pending the proceedings on remand.

¶32. Although prudence might ordinarily favor allowing the court of appeals to apply the de novo standard to the facts of this case in the first instance, given the lengthy procedural history of this case it does not seem appropriate to invoke this prudential rule here. Having reviewed the record and available sentence appeal decisions involving similarly situated offenders, I am convinced that, by any realistic measure, Michael’s overall conduct ranks among the least serious within the class of defendants actually convicted of first-degree sexual assault.1 Reviewing this particular set of facts de novo, I would thus hold that the statutory mitigating factor has been established as a matter of law. Accordingly, I would remand the case directly to the superior court for resentencing in light of this mitigating factor.

¶43. However, I would not independently conclude that Michael’s potential for rehabilitation amounts to an extraordinary circumstance warranting referral of his case to the three-judge panel.

¶5. The defendant in Benboe v. State, 698 P.2d 1230 (Alaska App.1985) received four years of unsuspended time for digitally penetrating a six-year old girl who was sleeping in the same house, causing slight physical injury. Although Michael's case may be distinguishable because of the presence of the "trust factor" between Michael and L.R. noted by the superior court, Michael’s term of imprisonment should not be double that of Benboe. I therefore conclude that Michael’s sentence should not exceed five years of unsuspended time. Cf. Armstrong, 2002 WL 31185806 (defendant given eight-year term with three years suspended for first degree sexual assault where defendant gave thirteen year-old friend of his daughter alcohol until she "passed out" and then had sexual intercourse with her).

MATTHEWS, Justice,

¶6with whom FABE, Justice, joins, concurring.

¶7I join in the court’s order but write separately because I believe that any sentence *522that includes more than five years of unsus-pended time is excessive in this case.1 This is true whether Michael’s conduct is among “the least serious conduct” for the offense as a matter of law or his case is referred to the three-judge panel because imposing the presumptive sentence without taking into account Michael’s rehabilitative potential would work a manifest injustice.

¶8. Apart from Benboe v. State, 698 P.2d 1230 (Alaska App.1985) (described briefly in Justice Matthews’s concurrence below) no sentencing decisions published by this court or the court of appeals appear to involve first-degree sexual assault convictions with facts analogous to those at issue here. But four unpublished decisions of the court of appeals involve generally similar facts and thus provide a useful framework for considering Michael's least-serious-conduct claim. See State v. Armstrong, 2002 WL 31185806; Harrison v. State, 2004 WL 1567749; Inga v. State, 2004 WL 719626; and Broeckel v. State, 1998 WL 10267. The conduct in Michael's case seems mitigated in comparison to the conduct considered in all these cases; and, as today's order observes, Armstrongexpressly affirmed a superior court finding that the defendant's conduct was among the least serious in its class. Since no other sentencing decisions appear to address first-degree sexual assault convictions involving less serious conduct, there seems to be no realistic basis for concluding that the overall facts of Michael’s case are not among the least serious of all cases where defendants are actually convicted and sentenced for first-degree sexual assault. Notably, although these decisions are unpublished and their legal analysis is therefore not particularly germane, the court of appeals has previously approved the use of its unpublished sentencing decisions as a source for establishing realistic sentencing guidelines and benchmarks. See Rudden v. State, 881 P.2d 328, 332 n. 2 (Alaska App.1994).

FABE, Justice,

¶9concurring.

¶10I join in the court’s order but write separately to express one concern about directing Michael’s release without specifying the maximum term of imprisonment beyond which the sentence would be excessive. Although the court’s approach is efficient, the Department of Corrections cannot calculate a new release date without knowledge of the maximum term of incarceration possible for Michael’s sentence. And because first-degree sexual assault is an unclassified felony, Michael is not entitled to release on bail.1 Thus, I would prefer to inform the lower courts of the maximum term that can be justified for Michael’s conduct.

¶11. AS 12.30.040(b)(1); AS 11.41.410(b).

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