Zackar v. State

¶1dissenting.

¶2The primary responsibility for determining an appropriate sentence in criminal cases rests with the trial court. State v. Graybill, 695 P.2d 725, 729 (Alaska 1985). Our sentence review authority is limited. We are to determine an appropriate sentencing range for a given offense and offender, and then compare the sentence being reviewed to determine whether it falls within that range. See, e.g., McClain v. State, 519 P.2d 811, 813 (Alaska 1974).1 If *1018it falls within the appropriate range, we must approve the sentence. It is only where the sentence being reviewed is outside the appropriate range that remand for resentencing is appropriate. In State v. Andrews, 707 P.2d 900, 912-13 (Alaska App.1985), affirmed, 723 P.2d 85 (Alaska 1986), we recognized a sentencing range for first offenders convicted of aggravated offenses of sexual abuse or sexual assault on minors of between ten and fifteen years of unsuspended incarceration. See also Covington v. State, 747 P.2d 550, 553 (Alaska App.1987). The majority accepts the trial court’s conclusion that this is an aggravated case because of the victim’s age and the injuries she suffered. I agree that the trial court’s conclusions along this line are not clearly mistaken. Consequently, it would appear that the sentence imposed, twenty years with five years suspended, is within the previously recognized range of sentences and should be approved.2 The majority’s conclusion that the appropriate sentence is fifteen years with three years suspended ignores our past decisions and exceeds our sentence review authority. It amounts to the kind of tinkering with trial court sentences forbidden by State v. Chaney, 477 P.2d 441, 444 n. 12 (Alaska 1970).

¶3I therefore dissent.