Summary
finding Alaska's 99-year presumptive term not cruel and unusual
Summary of this case from Nicketa v. StateOpinion
Court of Appeals No. A-11097 No. 6166
04-08-2015
LAWRENCE BERNARD KOBUK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 2NO-10-268 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Nome, Ben Esch, Judge, and the Statewide Three-Judge Sentencing Panel, Trevor Stephens, Randy M. Olsen, and Eric Smith, Judges. Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Lawrence Bernard Kobuk was convicted of second-degree sexual assault. Because this was Kobuk's third felony sexual offense, he was subject to a presumptive sentence of 99 years to serve.
AS 12.55.125(i)(3)(E).
The sentencing court determined that the 99-year presumptive sentence was manifestly unjust in Kobuk's case and therefore referred the case to the statewide three-judge sentencing panel. The three-judge panel disagreed that the presumptive sentence was manifestly unjust and therefore remanded the case to the superior court. The superior court then imposed the 99-year presumptive sentence.
Kobuk argues that the three-judge panel was clearly mistaken in finding that the presumptive sentence was not manifestly unjust. Although we agree that the panel's analysis was initially flawed, we conclude that the panel ultimately considered the appropriate sentencing criteria and that it was not clearly mistaken in finding that the 99-year presumptive term was justified in this case.
Kobuk also argues that his 99-year sentence violates the constitutional prohibitions against cruel and unusual punishment. For the reasons explained below, we find no merit to this claim.
Lastly, Kobuk argues that the State presented insufficient evidence to convict him of second-degree sexual assault. We conclude that there was sufficient evidence for a fair-minded juror to convict Kobuk. We therefore affirm Kobuk's conviction and sentence.
When we review a claim that evidence was insufficient to support a conviction, we view the evidence, and the reasonable inferences from that evidence, in the light most favorable to upholding the jury's verdict. See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
On April 5, 2010, in Saint Michael, A.O. and D.A. went to Kobuk's home to drink homebrew. D.A. and A.O. passed out after drinking too much.
When A.O. regained consciousness, she saw that Kobuk and D.A. had their pants down and that Kobuk was behind D.A "having sex" with her on the folding bed where D.A. had passed out. Later, A.O. shook D.A. a few times to wake her up and then helped D.A. put her pants on.
D.A. later testified that she passed out and awoke to find Kobuk on top of her penetrating her vagina with his penis. D.A. stated that her underwear and pants were off and that she "started hollering and screaming and telling [Kobuk] to get off [her], and he wouldn't." She also said that when she woke up, Kobuk appeared to be "in ... shock, like he knew I was sleeping, passed out." D.A. was seen by a health aide and then was flown to Nome for a medical exam. The exam revealed bruises on the inside of her thighs.
Alaska State Trooper Karl Erickson traveled to Saint Michael to interview Kobuk. Kobuk told Erickson that A.O. had "sa[id] [it] was okay to have sex with [D.A.]" and that A.O. had taken off D.A.'s pants and panties. Erickson asked Kobuk if D.A. eventually woke up, and Kobuk said, "I think she did, yeah."
Kobuk was charged with second-degree sexual assault for knowingly engaging in sexual penetration with D.A. when he knew she was incapacitated or unaware that a sexual act was being committed, and with manufacturing or selling alcohol without a license in a dry area. A jury convicted Kobuk of both offenses.
AS 11.41.420(a)(3).
AS 04.16.200(b).
At sentencing, the superior court found that there was a compelling argument that the 99-year presumptive sentence would result in manifest injustice in Kobuk's case. The court reached this conclusion based primarily on evidence that Kobuk had served honorably in the Vietnam war, had suffered mental health issues, and had received relatively minimal sentences for his prior sexual assaults, which had taken place more than twenty-five years before the sexual assault in this case. The court therefore referred the case to the three-judge sentencing panel for consideration of a lesser sentence.
In the proceeding before the three-judge panel, Kobuk's ex-wife and daughter described the "flashbacks" Kobuk experienced following his military service in Vietnam. They also testified that he was a responsible parent and a good father. The panel also heard from Alex Valenzuela, who had served in Vietnam with Kobuk. Valenzuela described how Kobuk and his helicopter company had saved at least twenty people who were under enemy fire on a mountaintop.
After considering Kobuk's offense, his criminal history, and the pertinent Chaney criteria, the panel concluded that the 99-year presumptive sentence was not manifestly unjust in Kobuk's case. The panel therefore referred the case back to the sentencing court, which then imposed the 99-year presumptive term for the sexual assault conviction and a concurrent 2-year sentence for the alcohol offense. Kobuk appeals his conviction and his sentence for the sexual assault.
State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
The three-judge panel was not clearly mistaken in concluding that the presumptive sentence was not manifestly unjust in Kobuk's case
Under AS 12.55.175(b), the three-judge panel has authority to impose a sentence below the presumptive term if the panel finds that the presumptive term would be manifestly unjust in the defendant's case. To find manifest injustice, the panel "must find that the defendant or his conduct is significantly different than that of a typical offender." In this analysis, the panel must consider "all of the appropriate sentencing considerations, including the defendant's background, his education, his character, his prior criminal history, and the seriousness of his offense." If, in weighing these considerations, the panel determines the presumptive sentence "would be obviously unfair in light of the need for rehabilitation, deterrence, isolation, and affirmation of community norms," the panel may, in its discretion, impose a lesser sentence.
Moore v. State, 262 P.3d 217, 221 (Alaska App. 2011).
Id. (internal quotation marks omitted) (quoting Totemoff v. State, 739 P.2d 769, 775 (Alaska App. 1987)).
Id. (internal quotation marks omitted) (quoting Totemoff, 739 P.2d at 775).
Kobuk argues that the three-judge panel committed legal error when it concluded, based on our decision in Moore v. State, that it could not consider the factors Kobuk advanced — his age, military service, and post-traumatic stress disorder — in assessing whether the 99-year presumptive sentence was manifestly unjust in his case.
262 P.3d 217 (Alaska App. 2011).
We agree that the three-judge panel misconstrued our decision in Moore. Moore argued that a sentence within the presumptive range for his first-degree sexual assault conviction would be manifestly unjust because his prior felony convictions were all for non-assaultive conduct (in other words, his prior felony convictions were for crimes that were less serious than his current offense).
Id. at 221.
Because Moore was asserting this single factor to support his claim of manifest injustice, we concluded that his argument was equivalent to a claim that he had established the non-statutory mitigating factor that his prior convictions were less serious than his current offense. We then concluded that, under Totemoff v. State, Moore could not rely on that non-statutory mitigating factor because the legislature had already explicitly rejected it as a statutory mitigator.
Id.
Totemoff v. State, 739 P.2d 769 (Alaska App. 1987).
Moore, 262 P.3d at 221 (citing Totemoff, 739 P.2d at 775).
Here, the three-judge panel assumed that our decision in Moore precluded it from considering evidence of Kobuk's age, military service, and post-traumatic stress disorder in assessing whether the presumptive 99-year sentence was manifestly unjust. This was wrong. Our holding in Moore addressed a very narrow circumstance: we held that a defendant cannot claim that a sentence within the presumptive range would be manifestly unjust based on a single factor that the legislature has declared unavailable as a statutory mitigating factor. We did not say that the defendant could not assert that factor as "one aspect among many in the overall determination of manifest injustice." We emphasized this point in Duncan v. State: "in order to decide whether the presumptive term would be manifestly unjust, the court must consider the totality of the circumstances surrounding the case."
Duncan v. State, 782 P.2d 301, 304 (Alaska App. 1989).
Id.
Nevertheless, when the three-judge panel's decision is reviewed in its entirety, it is apparent that the panel's misunderstanding of Moore had no affect on its ultimate decision. After this initial error, the panel went on to apply the proper legal analysis and to consider the mitigating circumstances advanced by Kobuk. The panel concluded that, despite the favorable aspects of Kobuk's history, he had "[no] prospect for rehabilitation at all":
We do not ... want in any way, shape or form to question ... the valor of what [Mr. Kobuk] did. ... We also recognize that [his military] service came with a cost and that ... society didn't deal with that cost and sent people like Mr. Kobuk home without the kind of treatment and services that he needed. ... But having said that, the crime [for] which he was convicted here ... is virtually identical to the [crimes] he committed twenty-five years ago. There's been no change in behavior.After concluding that Kobuk had no prospects for rehabilitation, the panel emphasized the Chaney sentencing factors of isolation, affirmation of social norms, and general deterrence, and concluded that the 99-year presumptive sentence was not manifestly unjust in his case.
Mr. Kobuk has a significant drinking history, he has an assault history. ... [He] rejected sex offender treatment after the first conviction. He ... started but never completed alcohol treatment[.] And the probation office pretty much gave up on him and that's because he had demonstrated himself not to be amenable to parole or probation. And again, with all due respect to Mr. Kobuk, he has never taken responsibility for anything that happened.
Superior Court Judge Randy M. Olsen, one of the panel members, made the additional observation that there did not appear to be any nexus between Kobuk's post-traumatic stress disorder and his decision to sexually assault an incapacitated woman. Nor, the judge added, did Kobuk's military service in Vietnam decades earlier appear to be indicative of his rehabilitative potential at sentencing for his current offense.
Thus, the panel considered Kobuk's age, military service, and post-traumatic stress disorder. But the panel ultimately concluded that, in light of Kobuk's criminal history, lack of remorse, and repeated failures at rehabilitation, these factors did not make him atypical among repeat sexual offenders, and that he was therefore not entitled to a sentence below the presumptive term.
Kobuk argues that the panel's finding that there had been "no change in behavior" since his earlier sexual assaults was clear error because the finding did not take account of the intervening twenty-five years during which he committed no sexual crimes. But we do not read the panel's findings to conclude that Kobuk continuously engaged in sexual misconduct over this period. Rather, we read the panel's findings to conclude that Kobuk failed to reform over this period — as evidenced by his committing the same type of sexual offense that formed the basis of his prior convictions. We find no clear error.
We conclude that the panel considered the appropriate criteria in reaching its decision and that the panel's decision was not clearly mistaken.
The presumptive term does not constitute cruel and unusual punishment
Kobuk next contends that the 99-year presumptive sentence is so grossly disproportionate to his offense that it constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Article I, Section 12 of the Alaska Constitution.
To support this claim, Kobuk observes that he had not been convicted of a felony sexual offense in twenty-five years and had not been convicted of assault in more than a decade. In addition, he notes that under the sentencing scheme for repeat sex offenders, he received the same 99-year sentence for a class B felony as he would have received if he had committed a sexual offense that was a class A or unclassified felony.
As we have repeatedly stated, the Eighth Amendment and the Alaska Constitution do not require that criminal penalties be strictly proportionate to the offense. Instead, the question is whether the penalty is grossly disproportionate. Under the Alaska Constitution, the test is whether the penalty is "so disproportionate to the offense committed to be completely arbitrary and shocking to the sense of justice."
Sikeo v. State, 258 P.3d 906, 912 (Alaska App. 2011); Hillman v. Anchorage, 941 P.2d 211, 216 (Alaska App. 1997); McNabb v. State, 860 P.2d 1294, 1298 (Alaska App. 1993).
Hillman, 941 P.2d at 216 (quoting Thomas v. State, 566 P.2d 630, 635 (Alaska 1977); Green v. State, 390 P.2d 433, 435 (Alaska 1964)).
Unless a penalty violates this constitutional safeguard, "the comparative gravity of offenses and their classification and resultant punishment is for legislative determination." And as we emphasized in Sikeo v. State, "state legislatures are entitled to take account of the defendant's history of criminal conduct and recidivism when assessing the defendant's danger to the public and the need to deter or forestall future crime."
Alexie v. State, 229 P.3d 217, 220 (Alaska App. 2010).
Sikeo, 258 P.3d at 912.
Kobuk was sixty-three years old when he was sentenced for sexually assaulting D.A. He had two prior felony sexual assault convictions in 1985 involving similar circumstances. The court that sentenced him for those 1985 offenses found that he was a most dangerous offender. Kobuk also had a substantial history of misdemeanor offenses, including four assaults and numerous alcohol-related offenses. The three-judge panel found that Kobuk had failed at many opportunities to reform his criminal behavior and that, at the time of his sentencing for this offense, his prospects for rehabilitation were non-existent. Kobuk had also failed to adequately address his alcohol abuse and had proved himself unamenable to probation or parole.
In this case, Kobuk sexually assaulted a woman while she was incapacitated and unaware of what was happening, and he later exhibited no remorse for his conduct. Given all of these circumstances, we find no merit to Kobuk's claim that the presumptive 99-year term for his third felony sexual offense was unconstitutionally cruel and unusual in his case.
The State presented sufficient evidence to prove that Kobuk committed second-degree sexual assault
Kobuk argues that the State did not present sufficient evidence to support the jury's verdict that he sexually assaulted D.A. He argues that A.O. and D.A. were not credible witnesses because they had been drinking and because they provided conflicting accounts of the incident.
When we assess the sufficiency of evidence to support a criminal conviction, we do not re-weigh the evidence or judge the credibility of the witnesses. We view the evidence in the light most favorable to upholding the verdict and consider whether the evidence and the reasonable inferences to be drawn from the evidence, viewed in that light, were sufficient to support a conclusion by a fair-minded juror that the State met its burden of proving guilt beyond a reasonable doubt.
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Eide v. State, 168 P.3d 499, 500-01 (Alaska App. 2007).
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Viewing the evidence in this light, D.A. and A.O. both testified that Kobuk had sex with D.A. while she was passed out. This evidence was sufficient for a fair-minded juror to conclude that Kobuk sexually penetrated D.A. while she was incapacitated and unaware of what was happening. The jury therefore had sufficient evidence to convict Kobuk of second-degree sexual assault.
Conclusion
We AFFIRM the judgment of the superior court and the judgment of the three-judge panel.