State v. Richards

¶1concurring.

¶2I join in Judge Coats’ decision to affirm Judge Gonzalez’ ruling that a robbery committed with an unloaded and inoperable handgun may be found to be among the least serious conduct included within the definition of robbery in the first degree. AS 12.55.155(d)(9).

¶3I write separately to make two points. First, to show that our decision today is not in conflict with earlier cases interpreting this mitigating factor and its, corollary, AS 12.55.155(c)(10) (most serious conduct), such as Walsh v. State, 677 P.2d 912, 916-18 (Alaska App.1984) (reckless manslaughter not necessarily less serious than intentional manslaughter mitigated by extreme provocation), and Juneby v. State, 641 P.2d 823, 841 (Alaska App.1982), modified on rehearing, 665 P.2d 30 (Alaska App.1983) (sexual assault in the first degree could be committed in one of four alternate ways; each was of equal dignity, and the trial court erred in determining that “forcible rape” was always more serious conduct than “statutory rape”). Second, I wish to emphasize a distinction, obscured by the dissent, between (1) finding a mitigating factor by clear and convincing evidence, and (2) reducing a presumptive sentence in reliance on that factor. See Linn v. State, 658 P.2d 150 (Alaska App.1983) (establishment of aggravating or mitigating factor by clear and convincing evidence does not, standing alone, warrant adjustment of a presumptive term).

¶4The result we reach in the instant case is in line with earlier cases in which we have interpreted the most serious offense aggra-vator and the least serious offense miti-gator. Under former law, various forms of sexual exploitation of an extreme nature were labeled first-degree sexual assault. Beyond a common nexus in extreme sexual exploitation, however, former AS 11.41.-410(a) described four somewhat distinct offenses ranging from forcible rape and attempted forcible rape causing serious physical injury to statutory rape and incest. The first two alternatives are crimes of violence, which invade an adult victim’s freedom of choice, while the latter two alternatives are crimes of imposition, exploiting a child’s youth and vulnerability. Since these crimes protect different interests, we concluded that the legislature saw forcible rape and statutory rape as different crimes of equal seriousness and intended that neither was more aggravated or mitigated than the other. Juneby v. State, 641 P.2d at 841.

¶5We had occasion to consider a similar issue in Walsh v. State, 677 P.2d 912 (Alaska App.1984). There, the offense was manslaughter. AS 11.41.120(a)(1) (intentionally, knowingly or recklessly causing the death of another). Walsh argued that his conduct in recklessly driving a motor vehicle, while he was intoxicated, so that it collided head-on with another vehicle driving in its proper lane of traffic, was necessarily less serious than intentionally or knowingly killing someone. We rejected Walsh’s argument for two reasons. First, we noted that intentional or knowing homicide is murder, unless reduced to manslaughter by extreme provocation. We reasoned that a trial court might reasonably find that an intentional killing that was substantially provoked might be less serious than a reckless homicide not otherwise mitigated. Secondly, we noted that extreme recklessness resulting in the death of another might constitute second-degree murder. In Pears v. State, 672 P.2d 903*50(Alaska App.1983),1 we decided that the same factors a jury should consider in determining whether reckless homicide is murder or manslaughter, should also be considered by the trial court in deciding whether a given reckless manslaughter is typical, least serious, or most serious. In Walsh’s case, we concluded that the trial court did not err in declining to find his conduct the least serious within the definition of manslaughter. 677 P.2d at 918. Walshestablishes that a trial court may not decide the question of least serious conduct in a vacuum but must consider the totality of the circumstances in deciding whether the defendant’s conduct is typical for the offense or whether it verges on a greater or lesser offense. Accord Davis v. State, 706 P.2d 1198, 1201 (Alaska App.1985) (upholding rejection of mitigating factor in robbery prosecution under the totality of the circumstances).

¶6In contrast, while separated into degrees, there is but one crime of robbery. The interest protected by sanctioning robbery in the first and second degrees, however performed, is freedom from physical injury. The dissent, of course, is correct: that the legislature wished to prevent the creation of a risk of physical injury, as well as the infliction of such injury. The distinction between robbery in the first and second degrees is the possession or use of a dangerous instrument. Compare AS 11.41.-500 (robbery in the first degree) with AS 11.41.510 (robbery in the second degree). Firearms and knives — deadly weapons— are in a subclass of dangerous instruments. See AS 11.81.900(b)(ll) & (13). Apparently, the legislature distinguished between the two offenses, because it believed that possession of a dangerous instrument enhanced the risk of serious physical injury. This conclusion is reinforced by the reasoning behind the legislature’s clarification of felonies. AS 11.81.250(a)(l)(class A felonies characteristically involve conduct resulting in serious physical injury or a substantial risk of serious physical injury to a person), which should be compared with AS 11.81.250(a)(2)(class B felonies characteristically involve conduct resulting in less severe violence against a person).

¶7Robbery in the first degree is a class A felony; robbery in the second degree is a class B felony. With these distinctions in mind, it is reasonable to divide class A felonies into least serious, typical, and most serious felonies based on the magnitude of the risk of serious physical injury presented by a specific defendant’s conduct at the time and place in question. Where conduct actually causes serious physical injury, the defendant’s conduct would be among the most serious. AS 12.55.155(c)(10). Where the defendant’s conduct presents a substantial risk of serious physical injury, but no injury in fact is suffered, the case would be typical, and the presumptive sentences in AS 12.55.125(c) would appear appropriate. If there was sufficient risk of physical injury, because of the use of a dangerous instrument, to warrant characterization as a class A felony, but the magnitude of the risk under all the circumstances was low, then a mitigated case could be found. AS 12.55.155(d)(9). This analysis is also consistent with the legislature’s apparent intent in establishing aggravating and mitigating factors for most serious and least serious conduct. As the conduct approaches a greater offense, it is most serious and, conversely, as it approaches a lesser offense, it is least serious. See Braaten v. State, 705 P.2d 1311, 1325 (Alaska App.1985) (Singleton, J., concurring).

¶8The distinction between robbery in the first and second degree is the presence of a dangerous instrument defined as anything which, under the circumstances in which it is used, is capable of causing death or serious physical injury. AS 11.81.-900(b)(ll). Deadly weapons, including knives and firearms, are a subclass of dangerous instruments. See AS 11.81-900(b)(13). The reason for this distinction is a legislative recognition of the increased *51risk of death or serious physical injury where a dangerous instrument is used. Thus, it is reasonable for a trial court to find that robbery in the first degree approaches a robbery in the second degree {i.e., the least serious robbery in the first degree) as the risk of serious physical injury diminshes and to further find that the risk of injury from a firearm diminishes where that firearm is unloaded and, in fact, inoperable. See Nell v. State, 642 P.2d 1361, 1371 (Alaska App.1982) (recognizing a robbery with an unloaded firearm as among the least serious within the category of the aggravated robbery offense). Cf. Hobbs v. State, 363 P.2d 357, 358-59 & n. 3 (Alaska 1961) (under former law, threat with an unloaded pistol could not support conviction for assault with a dangerous weapon unless it was used as a club). Accord Else v. State, 555 P.2d 1210, 1212-13 (Alaska 1976).2

¶9The second issue I wish to address, the effect the mitigator should have had on the sentence, is more problematical. As we found in Linn, the establishment of an aggravating factor, and by reasonable extension, a mitigating factor, does not automatically justify increasing or decreasing a presumptive sentence. 658 P.2d at 153. No matter how many aggravating or mitigating factors are properly found, a trial court need not adjust a presumptive sentence if adjustment is not warranted by the facts of the case. The legislature prescribes a five-year presumptive sentence for a first offender convicted of a class A felony and a seven-year presumptive term for such a person if he or she possessed a firearm or used a dangerous weapon or caused serious physical injury. AS 12.55.-125(c)(1) & (2).3

¶10Richards possessed an inoperable firearm. In addition, the trial court found as an aggravating factor that Richards’ offense involved more than one victim. AS 12.55.155(c)(9). Nevertheless, the trial court mitigated the sentence by suspending thirty months (two and one-half years). Richards, therefore, has a presumptive sentence of seven years, with four and one-half years to serve. Under Linn, the trial court, having found aggravating and mitigating factors, must evaluate a proper sentence under the Chaney criteria. See State v. Chaney, 477 P.2d 441 (Alaska 1970). I would not find a sentence of six years to serve in Richards’ case too severe. See Nell v. State, 642 P.2d at 1371 (six-year presumptive sentence for robber using unloaded firearm reduced by one year to a five-year presumptive term). The trial court could have given more weight to the number of victims the possible psychological injury to those victims and the very real risk of victim retaliation than was, in fact, given. On the other hand, having found a mitigating factor, the court could have reduced the presumptive term to three and one-half years. AS 12.55.155(a)(2). Judge *52Gonzalez balanced the aggravating and mitigating factors and imposed a sentence of four and one-half years. A reasonable judge could have struck the balance to require a longer sentence without being clearly mistaken. I am not prepared to say that Richards’ sentence of seven years with two and one-half years suspended is clearly mistaken when all relevant factors are considered. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).