Opinion
A-13703
09-28-2022
DONALD HOTCH, Appellant, v. STATE OF ALASKA, Appellee.
Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, First Judicial District, Juneau, Trial Court No. 1HA-17-00009 CR Philip M. Pallenberg, Judge.
Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, 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.
Donald Hotch pleaded no contest to first-degree sexual abuse of a minor and second-degree sexual abuse of a minor for digitally penetrating a minor's vagina and touching her breast. The plea was entered without an Alaska Criminal Rule 11 plea agreement.
AS 11.41.434(a)(1) and AS 11.41.436(a)(2), respectively.
Although there were allegations of prior sexual misconduct with his daughter and grandchildren, Hotch had no prior felony convictions. His criminal history consisted solely of a misdemeanor driving under the influence conviction from 1981.
At the time of his sentencing, Hotch was seventy-three years old. As a first felony offender, Hotch faced a presumptive range of 25 to 35 years on the first-degree sexual abuse count and 5 to 15 years on the second-degree sexual abuse count.Because the court was required to impose at least one day of consecutive time, Hotch faced a minimum composite sentence of 25 years and 1 day to serve.
AS 12.55.125(i)(1)(A)(i) and (i)(3)(A), respectively.
See AS 12.55.127(c)(2)(F).
Prior to sentencing, Hotch filed a motion requesting that the superior court refer his case to the three-judge sentencing panel. He argued that a sentence within the applicable presumptive range would be manifestly unjust given his advanced age, his lack of criminal history, his status as a Vietnam veteran who suffered from combat-related physical and psychological trauma, his poor health (he reported that he had been diagnosed with terminal renal cancer), and concerns about whether he may be suffering the onset of dementia. He asserted that the three-judge sentencing panel would have the authority to give him a much shorter sentence with discretionary parole eligibility.
The superior court denied Hotch's request for a referral to the three-judge panel. In its remarks, the court acknowledged that Hotch was likely to die in prison if sentenced in accordance with the presumptive range. But the court noted that the legislature had enacted lengthy sentences for sex offenders with the knowledge that this would mean some convicted offenders would die in prison. The court noted that community condemnation for this type of sexual abuse of a minor offense "is very very high." In denying Hotch's request, the court reasoned that Hotch had failed to demonstrate that he was significantly different from the typical sex offender such that imposition of the legislatively enacted presumptive ranges would be manifestly unjust.
See Beltz v. State, 980 P.2d 474, 480 (Alaska App. 1999) (holding that, in order to show manifest injustice, a defendant bears the burden of showing, by clear and convincing evidence, "specific circumstances that make the defendant significantly different from a typical offender within that category or that make the defendant's conduct significantly different from a typical offense").
Ultimately, the court sentenced Hotch to a composite sentence of 25 years and 1 day to serve with an additional 10 years suspended - the minimum active term of imprisonment that applied under the statutes in the absence of a statutory mitigating factor or a referral to the three-judge panel.
Hotch now appeals, arguing that the superior court erred when it denied his request for a referral to the three-judge panel.
We review a sentencing court's decision whether to refer a case to the three-judge panel under the clearly mistaken standard of review. We have independently reviewed the sentencing record in this case and we do not find the superior court's decision clearly mistaken. As the State points out, there was nothing mitigated about Hotch's conduct, and his advanced age and health problems are largely a function of the fact that he committed his crimes when he was in his late sixties. We also note that Hotch did not make a testimonial denial or otherwise rebut the allegations that he had committed other uncharged sexual abuse of a minor offenses in the past. Given all these circumstances, we agree with the superior court that Hotch has failed to show that it would be manifestly unjust to sentence him in accordance with the legislatively enacted presumptive sentencing scheme.
Bossie v. State, 835 P.2d 1257, 1259 (Alaska App. 1992).
We note that Hotch also separately appeals the imposition of a probation condition that requires Hotch to submit to plethysmograph testing. The State agrees that this aspect of the probation condition should be stricken.
See, e.g., Galindo v. State, 481 P.3d 686, 691-92 (Alaska App. 2021); Love v. State, 436 P.3d 1058, 1060 (Alaska App. 2018); Kozvenikoffv. State, 433 P.3d 546, 547 (Alaska App. 2018).
Accordingly, we REMAND this case to the superior court to amend the challenged probation condition. (We also note that the judgment incorrectly states that Hotch pleaded "guilty" to the charges in this case, and we instruct the superior court on remand to amend the judgment to reflect that Hotch pleaded "no contest.") In all other respects, the judgment of the superior court is AFFIRMED.