Hunter v. State

182 P.3d 1146, 2008 Alas. App. LEXIS 58, 2008 WL 1990585

• Court: Court of Appeals of Alaska
• Decided: May 9, 2008
• Docket: A-8868
• Status: Published

Opinions

OPINION

STEWART, Judge.

In an earlier decision in this case, we affirmed John N. Hunter's convictions for five counts of first-degree sexual assault and several counts of robbery and assault in connection with the sexual assaults.¹ Hunter also challenged his 95-year composite sentence for these crimes, but we did not resolve his sentence appeal. Instead, we remanded the case to the superior court for resentenc-ing because we found plain error in one aspect of sentencing.² The error occurred because the superior court sentenced Hunter as a third felony offender on all of the counts.³ Because of the timing of Hunter's prior felony convictions, Hunter should have been sentenced as a second felony offender for one of the counts of first-degree robbery and one of the counts of first-degree sexual assault.⁴ Accordingly, we vacated the sentence imposed for those two convictions and remanded for re-sentencing.⁵

The superior court has now resentenced Hunter and imposed the same 95-year composite term for five counts of first-degree sexual assault, two counts of first-degree robbery, one count of third-degree assault and one count of second-degree assault.

Hunter argues that the superior court violated the double jeopardy clause when it imposed the same composite term that was originally imposed. We reject this claim because the superior court was authorized to impose a composite term that reflected the totality of Hunter's misconduct. The superi- or court imposed the composite term by running the presumptive sentence for each individual count consecutively or concurrently, in whole or in part, with other counts. We conclude that the superior court's imposition of the applicable presumptive term for each count on resentencing, together with its specification of which portion of the applicable presumptive term was imposed consecutively or concurrently with other counts, did not violate double jeopardy.

In addition, Hunter again claims that his composite term is excessive. Because we conclude that Hunter's composite term for all his convictions is not clearly mistaken, we affirm Hunter's sentence.⁶

Facts and proceedings

Hunter was convicted of offenses related to his attacks on five women over the course of more than five years. The five attacks included a December 1996 assault on MN., an August 1997 assault on J.J., a December 1998 assault on R.S., a January 2001 assault on J.V., and a January 2002 assault on L.A. We discussed the facts of these incidents in our earlier decision.⁷

Hunter had three prior felony convictions when be was sentenced. He had a 1981 California armed robbery conviction. Second, he had a 1983 Indiana rape conviction. (Hunter was unconditionally discharged from these two convictions on September 28, 1988.) Third, Hunter had an April 2000 Alaska conviction for felony driving while intoxicated. Because of the timing of Hunter's prior felony convictions, Hunter faced a 25-year presumptive term for four counts of first-degree sexual assault⁸ and a 15-year presumptive term for the remaining count of first-degree sexual assault⁹; a 15-year presumptive term for one first-degree robbery count ¹⁰ and a 10-year presumptive term for the second count of first-degree robbery ¹¹; a 3-year presumptive term on the third-degree assault charge ¹²; and a 6-year presumptive term on the second-degree assault charge.¹³

On the five first-degree sexual assault counts, Judge Volland imposed the presumptive term of 25 years' imprisonment for Counts I, II, IV, and V and the presumptive term of 15 years' imprisonment for Count III. He decided that 17 years of Counts II, IV, and V would run consecutively to Count I and to each other. He also decided that the entire 15-year presumptive term for Count III would run consecutively to all the other counts. Judge Volland imposed a 15-year presumptive term for the first-degree robbery charge in Count VII with that term to be served concurrently with the sexual assault terms. He imposed a 10-year presumptive term for the first-degree robbery in Count VI, with 2 years consecutive to Counts I-V and the rest concurrent. He also sentenced Hunter to a presumptive 3-year term on the third-degree assault charge (Count IX) with 6 months of that term consecutive to all previous counts. Finally, he imposed a presumptive 6-year term on the second-degree assault charge (Count X), with 18 months to be served consecutively to the previous counts. This resulted in a composite term of 95 years to serve.¹⁴

Discussion

In our earlier decision, we did not address all the issues Hunter raised because we remanded the case for resentencing. We now address the remaining claims in the case.

Hunter argued that Judge Volland improperly speculated that Hunter had committed additional uncharged sexual assaults when he sentenced Hunter. Such speculation would violate the decision in Donlun v. State.¹⁵ In Donlun, the supreme court held that a sentencing court erred when it speculated that the defendant had committed other uncharged crimes, and that the charged crime was simply the first time the defendant had been caught.¹⁶

We discussed but did not resolve this issue in our earlier decision. Because we remanded the case for resentencing, we indicated that Judge Volland could enter additional findings addressing this issue. On remand, Judge Volland clarified the record by indicating he placed no reliance on the potential that Hunter had other unknown victims. With this clarification, it is now explicitly clear that Judge Volland did not rely on the potential that Hunter had other unknown victims. Accordingly, we reject this claim.

Next, Hunter argues that on resen-tencing, Judge Volland violated double jeopardy by imposing 2 years of the 10-year presumptive term imposed for Count VI consecutive to the sexual assault counts because he originally imposed the entire presumptive term for this count concurrently. Hunter relies on Loola v. State.¹⁷ Loola was convict, ed of one count of assault with a dangerous weapon and one count of aggravated assault arising out of a single incident.¹⁸ The superi- or court imposed sentence on both counts, 10 years with 5 years suspended for assault with a dangerous weapon and a consecutive 5 years for aggravated assault.¹⁹ The State conceded that the counts should have merged under our supreme court's decision in Whitton v. State.²⁰

In Whitton, the court held that even though a defendant is found guilty of violating two separate criminal statutes arising out of one criminal episode, double jeopardy requires a sentencing court to impose only one conviction and one sentence if the two erimes are so closely related that there are no significant differences between the conduct proscribed and the societal values protected by each statute.²¹ The supreme court ruled that because Loola had not appealed the sentence imposed for assault with a dangerous weapon, the superior court could not increase the sentence originally imposed for that single count, the only count on which the superior court was constitutionally authorized to impose sentence.²²

That is not the case here. The jury convicted Hunter of nine counts arising out of five separate attacks on five different women. (Hunter has not argued that any of those nine counts merge under Whitton.) In sentencing Hunter, Judge Volland understood that he had the authority to impose over 200 years' imprisonment if he imposed consecutive maximum sentences for all nine counts. And he understood that Hunter's composite sentence would exceed 100 years' imprisonment if the judge imposed consecutive unadjusted presumptive terms. Judge Volland understood that the sentence he imposed would result in Hunter remaining in prison for the rest of his life. After reviewing sentencing decisions addressing long composite terms for offenders who were comparable to Hunter, Judge Volland elected to impose a 95-year composite term after considering all the sentencing criteria,²³ Hunter's history, and the crimes for which he was convicted. In the cireumstances of this case, resentenc-ing Hunter did not violate his double jeopardy rights.²⁴

The parties did not allege any statutory aggravating or mitigating factors, so Judge Volland was required to impose the presumptive term for each count.²⁵ Because the presumptive terms for the nine counts ranged from 3 to 25 years, there were a vast number of ways that Judge Volland could have imposed the counts consecutively and concurrently to reach the composite term he selected. At Hunter's original sentencing, Judge Volland reached 95 years by imposing each sexual assault presumptive term wholly or partly consecutive to the other sexual assault terms to reach a composite 98 years. He imposed the presumptive terms for the assault counts partially consecutive and partially concurrent to the sexual assault counts to impose an additional consecutive 2 years. The robbery presumptive terms were imposed all concurrent to the composite sexual assault terms.

At Hunter's resentencing, Judge Volland reaffirmed his analysis of Hunter's case and again concluded that a 95-year composite term remained the appropriate sentence. Judge Volland elected not to change the relationship of the presumptive terms he imposed for the seven counts on which Hunter was properly classified as a third felony offender. He decided to impose the presumptive terms on the two counts on which Hunter had to be resentenced as a second felony offender both consecutively and partially concurrently so that the composite term for those two counts, in addition to the composite term for the seven undisturbed counts, resulted in a 95-year composite term.

Although Hunter was resentenced, he remains convicted of the crimes on which the jury found him guilty. Judge Volland's intent to fashion the 95-year composite sentence is clear from his remarks, and that term represents the judge's analysis of the appropriate sentence to impose considering the facts of the case and the sentencing criteria. Furthermore, unlike the appellant in Loola, Hunter did not challenge the constitutionality of the superior court's authority to sentence him on any count. Instead, Hunter challenged, as a matter of plain error, the presumptive terms that resulted from his misclassification as a third felony offender and, unlike Loola, argued that his entire term is excessive. We conclude that Hunter's case is distinguishable from Loolq, and that Hunter's double jeopardy rights were not violated when Judge Volland imposed the same presumptive term at resentencing.

We now turn to Hunter's claim that his 95-year term is excessive. Our review of Alaska sentencing cases shows that Hunter's composite term is the longest (among reported cases) for a case not involving a homicide. Judge Volland's remarks show that he reviewed reported cases affirming a defendant's lengthy sentence for sexual assault.

Several decisions of this court are instructive. In Schuenemann v. State,²⁶ Ross v. State,²⁷ and Adams v. State,"²⁸ we upheld sentences that were virtually lifetime sentences for mature sexual offenders who demonstrated ingrained and compulsive criminal histories.

In Schuenemann, we upheld a composite 69-year term for five counts of first-degree sexual assault, two counts of first-degree attempted sexual assault, and three counts of first-degree burglary.²⁹ Schuenemann was a second felony offender.³⁰ In Ross, we upheld, for a second felony offender, a composite sentence of 84 years to serve for one count of kidnapping, five counts of first-degree sexual assault, and one count of second-degree sexual assault.³¹ In Adams, we upheld a composite 60-year term to serve for a third-felony offender who was convicted of one count of first-degree sexual assault and one count of kidnapping.³² Also, in State v. Hodari,³³ the supreme court upheld Hodart's composite 55-year term for two counts of first-degree sexual assault, one count of first-degree robbery, and one count of second-degree assault.³⁴ Hodari was sentenced as a second felony.³⁵

Hunter, who was forty-two years old at sentencing, is a mature offender. Hunter had three prior felony convictions when he appeared before Judge Volland for sentencing. Hunter's criminal conduct began as a teenager when he attempted to force another child to engage in sexual penetration. He was convicted of armed robbery at the age of sixteen. At seventeen, Hunter and another individual broke into a residence and sexually assaulted a seventeen-year-old girl. While he was in custody for armed robbery, Hunter sexually assaulted another inmate.

Judge Volland found that Hunter's previous confinement had "no effect" and that Hunter's criminality was ingrained. These findings are reinforced by the fact that Hunter committed one of the sexual assaults in this case within twelve hours of a court appearance on an unrelated case. Judge Vol-land found that Hunter's prospects for rehabilitation were "nil." He found that Hunter had to be incarcerated for a substantial period of time "to prevent harm to the public." He found that Hunter's repeated sexual assaults "reflect conduct by a man undeterred by frequent contacts with the criminal justice system" and that Hunter was a "worst offender."

In this case, Hunter sexually assaulted five victims; there was physical assault and physical injury associated with some of the sexual assaults. Hunter's conduct was predatory, and his treatment of the victims was brutal. Despite repeated contact with the criminal justice system, he has shown no potential for rehabilitation. His criminal history shows that he is a persistent and violent offender.³⁶

The record in this case demonstrates that Judge Volland reasonably concluded that Hunter is a member of the rare class of offenders who must be incarcerated for the remainder of their life for the protection of the public. We conclude that Hunter's sentence is not clearly mistaken.³⁷

Conclusion

Hunter's sentence is AP-FIRMED. composite

1 . Hunter v. State, Alaska App. Memorandum Opinion and Judgment No. 5259 at 3, 8 (August 22, 2007), 2007 WL 2405208 at *2, *4.

2 . Id. at 31-36, 2007 WL 2405208 at *16-19.

3 . Id. at 32, 2007 WL 2405208 at *17.

4 . Id. at 32-37, 2007 WL 2405208 at *17-19.

5 . Id. at 36-37, 2007 WL 2405208 at *19.

6 . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (bolding that an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).

7 . Hunter, Alaska App. Memorandum Opinion and Judgment No. 5259 at 4-8, 2007 WL 2405208 at *2-5.

8 . AS 11.41.410(b) and former AS 12.55.125(i)(4).

9 . AS 11.41.410(b) and former AS 12.55.125(D(3).

10 . AS 11.41.500(b) and former AS 12.55.125(c)(4). >

11 . AS 11.41.500(b) and former AS 12.55.125(c)(3).

12 . AS 11.41.220(d) and former AS 12.55.125(e)(2).

13 . AS 11.41.210(b) and former AS 12.55.125(d)(2).

14 . Our first decision described Hunter's composite term as a 94-year term which is the term that is described by the original written judgment. But the written judgment contained a clerical error. The written judgment indicated that only 6 months of Count X was imposed consecutively to the other counts. In fact, Judge Volland's oral pronouncement of sentence imposed 18 months of Count X consecutively to the other counts. This clerical error was discussed at resentencing.

15 . 550 P.2d 369 (Alaska 1976).

16 . Id. at 371.

17 . 608 P.2d 36 (Alaska 1980).

18 . Id. at 37.

19 . Id.

20 . Id. (citing Whitton v. State, 479 P.2d 302 (Alaska 1970)).

21 . Id. at 312-13.

22 . Loola, 608 P.2d at 37.

23 . See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) and AS 12.55.005 (codifying the Chaney sentencing criteria).

24 . See, e.g., Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985).

25 . See Smith v. State, 711 P.2d 561, 567 (Alaska App.1985) (in absence of aggravating or mitigating factors an individual sentencing judge has no discretion to deviate from the presumptive term).

26 . 781 P.2d 1005 (Alaska App.1989).

27 . 877 P.2d 777 (Alaska App.1994).

28 . 927 P.2d 751 (Alaska App.1996).

29 . Schuenemann, 781 P.2d at 1009.

30 . Id. at 1007.

31 . Ross, 877 P.2d at 781-83.

32 . Adams, 927 P.2d at 759-61.

33 . 996 P.2d 1230 (Alaska 2000).

34 . Id. at 1231.

³⁵

36 . See Williams v. State, 800 P.2d 955, 959-60 (Alaska App.1990), modified on reconsideration, 809 P.2d 931 (Alaska App.1991).

37 . See McClain, 519 P.2d at 813-14.