Opinion
Court of Appeals No. A-11004 No. 6111
11-05-2014
VICTOR WILFRED OLSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Doug Miller, Law Office of Douglas S. Miller, Anchorage, for the Appellant. Tamara 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. 3AN-09-13834 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, David C. Stewart, Judge. Appearances: Doug Miller, Law Office of Douglas S. Miller, Anchorage, for the Appellant. Tamara 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 ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Victor Wilfred Olson was convicted of attempted second-degree sexual abuse of a minor for attempting to put his mouth on the vagina of a three-year-old girl. This was Olson's third sexual felony and the superior court sentenced him to the presumptive term — 99 years to serve.
Olson argues that the court erred by not referring his case to the statewide three-judge sentencing panel. He also argues that the 99-year sentence is grossly disproportionate to his offense, amounting to cruel and unusual punishment under the federal and state constitutions. For the reasons explained here, we reject these claims and affirm Olson's sentence.
Facts and proceedings
In December 2009, Olson was staying in Rebecca Simpson's apartment in Anchorage, sleeping on the couch. There were two young children living in the apartment at the time, including three-year-old T.W. Simpson took care of the children while their mother was at work. On the morning of December 2, when Simpson went to check on the children, she saw Olson leaning over T.W.'s bed. T.W. did not have underwear on and Olson was holding her legs apart and had his face within an inch of her genitals. When Simpson yelled at Olson, he stopped and said, "[A]re you mad at me?"
A jury convicted Olson of attempted second-degree sexual abuse of a minor (attempted sexual contact with a child under 13 years of age), a class C felony. Because Olson had been convicted of a sexual felony twice before, he faced a presumptive sentence of 99 years to serve.
Former AS 11.41.436(a)(2) (2012) ("An offender commits the crime of sexual abuse of a minor in the second degree if ... being 16 years of age or older, the offender engages in sexual contact with a person who is under 13 years of age ... ."); AS 11.31.100 ("A person is guilty of an attempt to commit a crime if, with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime.").
AS 12.55.125(i)(4)(E); AS 12.55.185(16).
Olson asked the sentencing court to find that his offense was mitigated under AS 12.55.155(d)(9) on the ground that the conduct constituting his offense was among the "least serious" included within the definition of the offense of attempted second-degree sexual abuse of a minor. He also asked the court to refer his case to the three-judge sentencing panel because (1) manifest injustice would result from failure to consider the non-statutory mitigating factor that he had been repeatedly sexually abused as a child; and (2) the presumptive sentence of 99 years was manifestly unjust because it served no legitimate penal purpose under the Chaney sentencing criteria. Lastly, Olson argued that the 99-year sentence was cruel and unusual punishment in violation of the Eighth Amendment and the Alaska Constitution.
See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
Superior Court Judge pro tem David C. Stewart rejected Olson's constitutional claims and found that Olson had failed to establish the "least serious" mitigator. The judge also declined to refer the case to the three-judge panel. The judge accepted Olson's assertion that he had been "horribly victimized" by sexual abuse as a child. But the judge concluded that this was not "the type of experience or consideration" that necessarily constituted a non-statutory mitigating factor requiring the court to refer the case to the three-judge panel. The judge also ruled that imposing the presumptive sentence would not be manifestly unjust given Olson's extensive criminal record.
The judge then imposed the 99-year presumptive term. By statute, Olson is ineligible for "good time" credit or discretionary parole.
AS 33.16.090(b)(2) and AS 33.20.010(a)(3), respectively, discussed in Sikeo v. State, 258 P.3d 906, 909 & nn.4-5 (Alaska App. 2011).
Olson now appeals his sentence.
The sentencing court did not commit plain error by refusing to refer Olson's case to the three-judge panel based on the non-statutory mitigating factor of "normal" to "good" prospects for rehabilitation
Under AS 12.55.165(a), a sentencing judge must refer a case to the three-judge sentencing panel if the defendant establishes that it would be manifestly unjust, because of some non-statutory mitigating factor, "to fail to make some adjustment (albeit small) to the sentence allowed by the presumptive sentencing law."
Harapat v. State, 174 P.3d 249, 254 (Alaska App. 2007).
In the trial court proceedings below, Olson asked the sentencing judge to refer his case to the three-judge panel based on the non-statutory mitigating factor of childhood sexual abuse. Olson did not argue that his childhood sexual abuse gave him better than normal prospects for rehabilitation; rather, he argued that this history made him less culpable for his actions.
Olson has not renewed that claim on appeal. Instead, he argues that, under Collins v. State, the superior court should have referred his case to the three-judge panel because he established that he had "normal" to "good" prospects for rehabilitation. He argues that he established this non-statutory mitigating factor by showing that he had endured severe childhood sexual abuse and had undergone minimal sex offender treatment. This was not the argument that he presented to Judge Stewart, so Olson must show plain error on appeal.
287 P.3d 791 (Alaska App. 2012). We issued our decision in Collins after Olson was sentenced.
In his pleadings in superior court, Olson declared that "[i]t should be beyond question that any sentencing court would find that a third felony sex defendant [sic] would not qualify as having an 'extraordinary potential for rehabilitation.'"
See Adams v. State, 261 P.3d 758, 770-73 (Alaska 2011).
In Collins, we held that a court should refer a case to the three-judge sentencing panel if the defendant shows, by clear and convincing evidence, that the legislative assumptions underlying the 2006 increases to the sentencing ranges for sexual offenses — namely, the assumptions that the typical sex offender has a history of unprosecuted sex offenses and very poor prospects for rehabilitation — do not apply to the defendant. However, the legal effect of our decision in Collins is unclear because the Alaska Legislature repudiated the decision shortly after it was issued by enacting a new statute (AS 12.55.165(c)) and declaring that it viewed the dissenting opinion in Collins as expressing the proper interpretation of the former statute.
AS 12.55.165(c) (eff. July 1, 2013) provides:
(c) A court may not refer a case to a three-judge panel under (a) of this section if the ... referral is based solely on the claim that the defendant, either singly or in combination, has
(1) prospects for rehabilitation that are less than extraordinary; or
(2) a history free of unprosecuted, undocumented, or undetected sexual offenses.
Waskey v. State, 2014 WL 2834897, at *1 (Alaska App. June 18, 2014) (unpublished) (citing ch. 43, § 1, SLA 2013).
We need not resolve whether Collins (or any of its underlying reasoning) applies in Olson's case because, even if it did, the sentencing court did not commit error, much less plain error, by failing to refer Olson's case to the three-judge panel based on his purported "normal" to "good" potential for rehabilitation. Here, the sentencing judge specifically found that Olson's potential for rehabilitation was "dismal," and that finding is well supported by the record. In addition to his two prior sexual felonies, which also involved young children, Olson had prior convictions for burglary, receiving stolen property, weapons offenses, harassing communication, damage to property, and fourth-degree assault. He also had eight prior convictions for violating his probation or parole and three prior convictions for failure (or attempted failure) to register as a sex offender.
Olson also repeatedly failed to complete the sex offender and substance abuse treatment programs made available to him. During his incarceration for his second sexual felony in the 1990s, Olson was discharged from sex offender treatment because of his temper and his resistance to treatment. In 2001, after Olson disclosed in a sex offender evaluation that he had been sexually abused as a child, a recommendation was made for him to pursue further sex offender and substance abuse treatment while on parole, but Olson violated parole and did not start treatment.
In 2003, Olson was again directed to attend sex offender treatment, but he did not show up for treatment and was eventually arrested. In 2004, Olson completed the residential component of a substance abuse program, but he left before completing the aftercare component of the program and, as a result, lost an opportunity for sex offender treatment that was contingent on his successful completion of substance abuse treatment. At the same time, Olson absconded from probation supervision, and when he was arrested nineteen days later he was intoxicated and out of compliance with his sex offender registration requirements. After reviewing this history, the author of Olson's presentence report stated that "[i]t is sadly unfortunate that the defendant has squandered the abundance of the rehabilitative opportunities he has been afforded to date when the need for treatment was so painfully apparent."
Olson argues that these prior opportunities for rehabilitation should not be considered in assessing his current rehabilitative potential because he did not "fully confront" his child sexual abuse until at least 2006, when he disclosed the abuse to an attorney who was pursuing a class action lawsuit against the Catholic diocese. We acknowledge the possibility that Olson did not confront the full extent of the abuse he suffered as a child until 2006. But, as we just noted, the record shows that Olson disclosed at least some of his childhood sexual abuse during a sex offender evaluation in 2001. Furthermore, at his sentencing hearing in this case, he offered no expert testimony or other evidence to substantiate his assertion that he failed to "fully confront" this history until 2006 or to support his assertion that, for this reason, his past failures at rehabilitation should not be used to assess his current rehabilitation potential.
We conclude that the sentencing court did not commit plain error by failing to refer Olson's case to the three-judge sentencing panel.
The sentencing court did not err in failing to refer Olson's case to the three-judge panel on the ground that the presumptive sentence was manifestly unjust
Olson next argues that the superior court should have referred his case to the three-judge sentencing panel because the 99-year presumptive term was manifestly unjust in his case. Under AS 12.65.165(a), a sentencing judge must refer a case to the three-judge panel if the defendant establishes that a sentence within the presumptive range would be "manifestly unjust, i.e., plainly unfair, as applied to this particular defendant."
Knipe v. State, 305 P.3d 359, 363 (Alaska App. 2013).
"Before a sentencing judge can properly characterize a presumptive term as 'manifestly unjust', the judge must articulate 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." Put another way, a presumptive term cannot be "manifestly unjust" in general; it can only be manifestly unjust as applied to a particular defendant.
Beltz v. State, 980 P.2d 474, 480 (Alaska App. 1999).
Id.
Olson argues that his case is atypical and that the 99-year presumptive term is manifestly unjust because his three sexual offenses include one class B felony and two class C felonies. But his argument is really a challenge to the legislature's judgment on the appropriate penalties for repeat sexual offenses. "In general, the comparative gravity of offenses and their classification and resultant punishment is for legislative determination." By including class B and class C sexual felonies among those prior sexual offenses that trigger the 99-year presumptive term, the legislature signaled that, in its view, a 99-year term will normally be warranted by the defendant's recidivism and the sexual nature of his offenses, even if those offenses are not among the most serious sexual felonies.
Alex v. State, 484 P.2d 677, 685 (Alaska 1971).
Olson's complaint that he faces a presumptive term significantly greater than he would if his offenses were not sexual is similarly a challenge to the legislature's judgment in setting penalties. When the legislature enacted the current sentencing ranges for sexual offenses it declared that, to the extent the sentencing ranges for sexual offenses exceed those imposed for non-sexual offenses, "[t]his result is intentional and not anomalous." Olson's disagreement with this legislative judgment does not establish that the 99-year presumptive term is manifestly unjust in his case.
See February 16, 2006, Letter of Intent for Senate Bill 218, The Purposes and Rationale Underlying the Increase in Sentencing Ranges for Felony Sex Crimes in Alaska, 2006 Senate Journal 2209-10.
Olson also points to three circumstances particular to him that he argues make the presumptive 99-year term manifestly unjust: (1) he was sexually victimized as a child; (2) he was unable to fully confront that abuse until 2006; and (3) the child victim in this case was apparently largely unaware of the offense as it occurred.
The sentencing court accepted Olson's allegation that he had been sexually abused as a child but concluded that Olson had not established that this history warranted referral to the three-judge panel. This ruling is supported by the record. Olson presented no evidence to show that his history of sexual abuse made him such an atypical sexual offender that a sentence within the presumptive range would be manifestly unjust. Nor, as we have already explained, did he present any evidence to support his assertion that he failed to fully confront his own history of sexual abuse until 2006.
The superior court agreed with Olson that "it looks like [T.W.] was not terribly aware of what happened or even had the maturity and intellect to understand the offense that she was the victim of ... because she was so young." But the judge also found that Olson intended to have sexual contact with T.W. and that his attempt only failed because T.W.'s caretaker intervened. Moreover, when the court rejected Olson's proposed "least serious" mitigator, it found that Olson's conduct fell within the middle range of conduct that constitutes the offense of attempted sexual contact — in other words, the court found that Olson's offense was a typical offense. Olson has not challenged that finding. We conclude that the sentencing court did not err when it concluded that the victim's apparent lack of awareness of Olson's crime did not warrant a finding that the 99-year term was manifestly unjust.
Olson lastly argues that the sentencing court committed legal error by considering his two prior sexual felonies in assessing whether the 99-year presumptive sentence was manifestly unjust. He argues that the court should not have considered these prior sexual offenses because they were already factored into the 99-year sentence he received for his third sexual felony. But when Olson asked the superior court to find that the 99-year presumptive term was manifestly unjust in his case, he was asking the judge to find that he was less deserving of punishment than the typical third-time sexual felon. The court could not make that determination without considering all of Olson's criminal history. And the sentencing record makes clear that, in making this determination, the judge considered Olson's entire criminal record as laid out in the presentence report, not just his sexual felonies. We conclude that the superior court did not err by refusing to refer Olson's case to the three-judge panel on the ground that the presumptive 99-year sentence was manifestly unjust in his case.
See Beltz, 980 P.2d at 480.
Olson's 99-year sentence is not cruel and unusual punishment
Olson next argues that the 99-year sentence is grossly disproportionate to his offense and thus cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Alaska Constitution.
In addressing a claim that a sentence is grossly disproportionate to the defendant's offense under the Eighth Amendment, a court must compare the gravity of the offense and the severity of the sentence. In the "rare case" in which this threshold comparison leads to an inference of gross disproportionality, the court proceeds to the next two steps of the analysis, comparing the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this secondary analysis validates the threshold finding of gross disproportionality, the sentence is cruel and unusual under the federal constitution.
Graham v. Florida, 560 U.S. 48, 60 (2010) (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991)).
Id.
Alaska courts have stated the test somewhat differently: a punishment is cruel and unusual in violation of the Alaska Constitution if it is "so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice."
McNabb v. State, 860 P.2d 1294, 1298 (Alaska App. 1993) (citing Thomas v. State, 566 P.2d 630, 635 (Alaska 1977); Green v. State, 390 P.2d 433, 435 (Alaska 1964)).
As we explained 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." In Sikeo, we rejected the defendant's claim that the 99-year presumptive term for a third sexual offense violated the Eighth Amendment and the Alaska Constitution because it was more severe than the 20- to 99-year sentencing range for a first felony offender convicted of first-degree murder. We noted that, because Sikeo was sentenced for his third sexual offense, the more appropriate point of comparison was the mandatory 99-year sentence under AS 12.55.125(l) for a third class A or unclassified felony.
258 P.3d 906 (Alaska App. 2011).
Id. at 912.
Id. at 910.
Like Sikeo, Olson also asks this Court to invalidate his 99-year sentence because it is more severe than the sentencing range he would have faced if he had been convicted of first-degree murder. He points to cases from other jurisdictions that struck down the sentence imposed for a defendant's single offense because it was more severe than the penalty the defendant would have received if he had committed a clearly greater offense under the state's sentencing scheme. This argument fails because it does not take account of Olson's status as a recidivist. As we explained in Sikeo, "it is illogical to compare [the defendant's] prescribed punishment for sexual abuse of a minor, which is based in part on his recidivism, to the punishment prescribed for other defendants who may have committed more serious crimes, but who are not repeat felony offenders."
State v. Dayutis, 498 A.2d 325, 328-29 (N.H. 1985) (holding that a life sentence with a 35-year minimum for second-degree murder was disproportionate where, at the time of the offense, the penalty for first-degree murder was life imprisonment with an 18-year minimum); State v. Shumway, 630 P.2d 796, 802 (Or. 1981) (holding that the statute requiring the defendant to serve not less than 25 years of his life sentence before becoming eligible for parole for the offense of unaggravated intentional homicide was invalid where it was more severe than the minimum sentence for aggravated intentional homicide); Cannon v. Gladden, 281 P.2d 233, 235 (Or. 1955) (holding that the statute authorizing life imprisonment for assault with intent to commit rape was void where the sentence for the greater crime of rape was not more than 20 years); State v. Simonson, 259 P.3d 962, 966 (Or. App. 2011) (vacating defendant's sentence as disproportionate because he received a harsher sentence for sexual intercourse with a person aged 16 or 17 than he would have received for intercourse with a person aged 14 or 15).
Sikeo, 258 P.3d at 910.
Olson was convicted of attempted second-degree sexual abuse of a minor for attempting to place his mouth on the vagina of a three-year-old girl. The sentencing judge found that he would have completed that crime if he had not been interrupted. This was Olson's third conviction for a sexual felony involving young children. He was convicted of the completed offense of second-degree sexual abuse of a minor in 1996, at the age of 38, for fondling the anal and genital areas of four young children (ages 3, 4, 4, and 9) while exposing his penis and masturbating. In 1998, he was convicted, under a plea agreement, of attempted second-degree sexual abuse of a minor for again exposing his penis to a six-year-old girl (one of the victims in the previous case), kissing her, and fondling her vagina. This second offense was committed while Olson was on active parole supervision in his previous sexual abuse case.
Olson's sexual offenses are not among the most serious types of offenses that subject a third-felony sexual offender to a 99-year presumptive sentence. But, as we have explained, the State has a legitimate interest in imposing a harsher sentence based on a defendant's recidivist conduct because that conduct demonstrates the defendant's inability, or unwillingness, to conform to the norms established by the criminal law. We conclude that, in light of the state's legitimate interest in isolating recidivists, the sentence Olson received is not grossly disproportionate to the gravity of his third sexual offense; nor is the sentence "completely arbitrary and shocking to the sense of justice."
Ewing v. California, 538 U.S. 11, 29 (2003) (citing Rummel v. Estelle, 445 U.S. 263, 276 (1980)).
Graham v. Florida, 560 U.S. 48, 60 (2010) (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991)).
See McNabb, 860 P.2d at 1298.
Olson additionally argues that this Court should alter his sentence to allow him to request a modification or reduction of his sentence after serving half of his 99-year term of imprisonment, as allowed by statute for certain offenders who receive a mandatory 99-year sentence. To the extent Olson argues that this remedy is necessary to save his sentence from being unconstitutionally cruel and unusual, Olson's claim fails because his sentence is not cruel and unusual.
See AS 12.55.125(j); AS 12.55.125(a).
To the extent Olson argues that he is statutorily or equitably entitled to request a modification or reduction of his sentence after serving one-half of his 99-year term, that claim also fails. Certain defendants who receive a mandatory 99-year term of imprisonment are entitled to make a motion to modify their sentence after serving half of the sentence. But Olson did not receive a mandatory sentence, he received a presumptive sentence. The legislature has provided different procedures for defendants seeking relief from a presumptive sentence and defendants seeking relief from a mandatory 99-year sentence.
See AS 12.55.125(j).
We discussed the distinction between mandatory and presumptive sentences in Soundara v. State, 107 P.3d 290, 300 (Alaska App. 2005).
As we have already explained, Olson had the opportunity to seek a sentence below the presumptive term by proving a statutory or non-statutory mitigating factor or by obtaining referral to the three-judge panel on the ground that the 99-year presumptive sentence was manifestly unjust. If Olson had established a statutory mitigating factor, the sentencing court could have reduced his sentence by up to fifty percent (i.e., down to 49½ years). If Olson had obtained referral to the three-judge panel, and the panel had determined that the presumptive sentence was manifestly unjust, the panel could have sentenced him to any term of imprisonment up to the 99-year maximum.
See AS 12.55.155(d); AS 12.55.165(a).
AS 12.55.155(a)(2); Sikeo, 258 P.3d at 908.
AS 12.55.175(c); Sikeo, 258 P.3d at 909.
A defendant subject to a mandatory 99-year term does not have these options. For those defendants, the legislature has provided a different avenue of relief: a motion to modify their sentence under AS 12.55.125(j) after they have served half of their mandatory term.
See AS 12.55.125(a), (l); compare AS 12.55.155(a), AS 12.55.165(a).
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The fact that Olson failed to obtain a mitigated sentence under the procedures available to him does not mean he should be allowed to file a motion to modify his sentence under procedures the legislature created solely for defendants who receive a mandatory 99-year sentence.
Conclusion
We AFFIRM Olson's sentence.