OPINION
Before BOOCHEVER, C. J., RABINOW-ITZ, CONNOR and BURKE, JJ., and DIMOND, J. Pro Tem.
RABINOWITZ, Justice.
After separate jury trials in the superior court, Vernon Price was found guilty of the crime of attempting to procure a female for prostitution, a violation of AS 11.40.350,
and two separate counts of burglary in a dwelling, a violation of AS 11.20.080.
In February of 1973, Price was sentenced to a term of 10 years imprisonment for the offense of procuring for prostitution and to 10 years on each of the burglary convictions. The 10-year terms for the burglary convictions were made to run consecutively to each other, as well as consecutively to the 10-year sentence which was imposed on the offense of attempting to procure a female for prostitution. Thus, appellant Vernon Price was sentenced to a total of 30 years imprisonment.
Price’s trial counsel filed a notice of appeal on February 5, 1973 and notice of sentence appeal on February 13, 1973. Thereafter, on June 22, 1973, Price’s appeal and sentence appeal from his three felony convictions were dismissed for failure to file a brief within the prescribed time. In December 1976, the Public Defender Agen
cy filed a “Motion to Reinstate Appeal and Sentence Appeal” which was opposed by the state. Upon consideration of the motion and the state’s opposition, this court entered an order denying the motion to reinstate the merit appeals and granting the motion to reinstate the sentence appeals.
This sentence appeal followed.
At the time of sentencing appellant Vernon Price was 33 years old, married and was supporting two stepsons. Price’s troubles began at the age of 12 when his father died. Unable to get along with his stepfather, Price began to skip school and became difficult to manage. Due to disagreements with a second stepfather, Price and his younger brother Kenneth moved about the western states seeking employment during the 1950’s. Price dropped out of the 10th grade at North Bend High School in Oregon at the age of 15, but eventually completed the GED examination while confined in the Oregon State Correctional Institution.
The presentence report indicates that Price has had difficulty with alcohol; that he has an IQ level of “bright normal”; that his psychological evaluation established a pattern which was described “as a psychopathic personality characterized by immaturity, impulsiveness, difficulty in profiting from experience, and a lack of mature judgment or forethought”; that he had been married three times; and that he had worked as a logger, faller, catskinner, and auto body worker.
Of particular significance to this sentence appeal is Price’s past adult criminal record. From the presentence report the following picture emerges: In 1959 Price was convicted of disorderly conduct in Reno, Nevada;
in 1959 in Grants Pass, Oregon, Price was convicted of forgery and sentenced to a term of 3 years, and was paroled;
in 1961 for violation of his parole, Price was sentenced to a term of 2 years and approximately 2 months; in March of 1961 Price was convicted in Salem, Oregon, of two counts of receiving and concealing for which he received a sentence of 3 years;
and in 1963 at Empire, Oregon, Price was convicted of receiving and concealing and received a 4-year sentence;
in 1966 Price was convicted of his fifth felony, namely, burglary, and received a sentence from 6 months to 15 years;
and in Fairbanks,
Alaska, in 1970 Price was convicted of assault and battery and was sentenced to 90 days imprisonment with 60 suspended.
The presentence report also dealt with the appellant’s most recent convictions. Concerning the two convictions for burglary in a dwelling which are now on appeal to this court, the presentence report indicates that on April 1,1972, Price had obtained the services of two offenders who were on work release
for the alleged purpose of assisting him with home remodeling activities. Instead, on that particular day, they spend a good part of their time drinking. That afternoon they drove around. They first visited a home on ½ Mile Brock Road, and then later at 4½ Mile Steel Creek Road. According to the statement of one of the codefendants, it was Mr. Price’s idea.
As to the attempting to procure a female for prostitution conviction, which is also part of the instant sentence appeal, the presentence report states, in part:
This conviction arose out of reports made by persons who were approached approximately August 31, 1972, at the City Bar in Fairbanks. At that time, two females at the City Bar were offered employment to work as prostitutes at the Evergreen in Delta and that it would be worth approximately $1,000.00 to the girls to come along.
The author of the presentence report concluded:
From the standpoint of probationary possibilities, this officer feels that there are none whatsoever at this time. It appears that this defendant will repeat himself in some antisocial manner upon his release despite reasonable controls and requirements made by his conditions of parole.
The author of the presentenee report further noted that rehabilitation had been attempted in the past and had not been successful.
He opined, “The subject has been more dehabilitated then rehabilitated while institutionalized.” In the view of the probation-parole officer, isolation of Price was the most important element to consider “in order to prevent future conduct . so that society may be properly protected.” Thus, the presentence report concluded with the recommendation that Price be sentenced to a period of 20 years incarceration for the three felonies in question.
At the sentencing hearing the prosecution recommended consecutive sentences of 10 years on each conviction for a total of 30 years incarceration, placing primary emphasis on the belief that Price was not amenable to rehabilitation. In articulating the reasons for imposition of these consecutive 10-year sentences, the superior court stated that it was compelled to give primacy to the consideration of the need to protect the public. In elaborating on this theme, the sentencing court stated:
Four cases of receiving and concealing, two cases of burglary, a forgery case, assault and battery — certainly this isn’t a situation where I’m . . . concerned about the public’s safety from violence or physical harm, but I’m certainly considering — am taking into account the fact that they have a right also to be secure in their possessions, which is a right that you [Price] have not, in my opinion, af
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OPINION
Before BOOCHEVER, C. J., RABINOW-ITZ, CONNOR and BURKE, JJ., and DIMOND, J. Pro Tem.
RABINOWITZ, Justice.
After separate jury trials in the superior court, Vernon Price was found guilty of the crime of attempting to procure a female for prostitution, a violation of AS 11.40.350,
and two separate counts of burglary in a dwelling, a violation of AS 11.20.080.
In February of 1973, Price was sentenced to a term of 10 years imprisonment for the offense of procuring for prostitution and to 10 years on each of the burglary convictions. The 10-year terms for the burglary convictions were made to run consecutively to each other, as well as consecutively to the 10-year sentence which was imposed on the offense of attempting to procure a female for prostitution. Thus, appellant Vernon Price was sentenced to a total of 30 years imprisonment.
Price’s trial counsel filed a notice of appeal on February 5, 1973 and notice of sentence appeal on February 13, 1973. Thereafter, on June 22, 1973, Price’s appeal and sentence appeal from his three felony convictions were dismissed for failure to file a brief within the prescribed time. In December 1976, the Public Defender Agen
cy filed a “Motion to Reinstate Appeal and Sentence Appeal” which was opposed by the state. Upon consideration of the motion and the state’s opposition, this court entered an order denying the motion to reinstate the merit appeals and granting the motion to reinstate the sentence appeals.
This sentence appeal followed.
At the time of sentencing appellant Vernon Price was 33 years old, married and was supporting two stepsons. Price’s troubles began at the age of 12 when his father died. Unable to get along with his stepfather, Price began to skip school and became difficult to manage. Due to disagreements with a second stepfather, Price and his younger brother Kenneth moved about the western states seeking employment during the 1950’s. Price dropped out of the 10th grade at North Bend High School in Oregon at the age of 15, but eventually completed the GED examination while confined in the Oregon State Correctional Institution.
The presentence report indicates that Price has had difficulty with alcohol; that he has an IQ level of “bright normal”; that his psychological evaluation established a pattern which was described “as a psychopathic personality characterized by immaturity, impulsiveness, difficulty in profiting from experience, and a lack of mature judgment or forethought”; that he had been married three times; and that he had worked as a logger, faller, catskinner, and auto body worker.
Of particular significance to this sentence appeal is Price’s past adult criminal record. From the presentence report the following picture emerges: In 1959 Price was convicted of disorderly conduct in Reno, Nevada;
in 1959 in Grants Pass, Oregon, Price was convicted of forgery and sentenced to a term of 3 years, and was paroled;
in 1961 for violation of his parole, Price was sentenced to a term of 2 years and approximately 2 months; in March of 1961 Price was convicted in Salem, Oregon, of two counts of receiving and concealing for which he received a sentence of 3 years;
and in 1963 at Empire, Oregon, Price was convicted of receiving and concealing and received a 4-year sentence;
in 1966 Price was convicted of his fifth felony, namely, burglary, and received a sentence from 6 months to 15 years;
and in Fairbanks,
Alaska, in 1970 Price was convicted of assault and battery and was sentenced to 90 days imprisonment with 60 suspended.
The presentence report also dealt with the appellant’s most recent convictions. Concerning the two convictions for burglary in a dwelling which are now on appeal to this court, the presentence report indicates that on April 1,1972, Price had obtained the services of two offenders who were on work release
for the alleged purpose of assisting him with home remodeling activities. Instead, on that particular day, they spend a good part of their time drinking. That afternoon they drove around. They first visited a home on ½ Mile Brock Road, and then later at 4½ Mile Steel Creek Road. According to the statement of one of the codefendants, it was Mr. Price’s idea.
As to the attempting to procure a female for prostitution conviction, which is also part of the instant sentence appeal, the presentence report states, in part:
This conviction arose out of reports made by persons who were approached approximately August 31, 1972, at the City Bar in Fairbanks. At that time, two females at the City Bar were offered employment to work as prostitutes at the Evergreen in Delta and that it would be worth approximately $1,000.00 to the girls to come along.
The author of the presentence report concluded:
From the standpoint of probationary possibilities, this officer feels that there are none whatsoever at this time. It appears that this defendant will repeat himself in some antisocial manner upon his release despite reasonable controls and requirements made by his conditions of parole.
The author of the presentenee report further noted that rehabilitation had been attempted in the past and had not been successful.
He opined, “The subject has been more dehabilitated then rehabilitated while institutionalized.” In the view of the probation-parole officer, isolation of Price was the most important element to consider “in order to prevent future conduct . so that society may be properly protected.” Thus, the presentence report concluded with the recommendation that Price be sentenced to a period of 20 years incarceration for the three felonies in question.
At the sentencing hearing the prosecution recommended consecutive sentences of 10 years on each conviction for a total of 30 years incarceration, placing primary emphasis on the belief that Price was not amenable to rehabilitation. In articulating the reasons for imposition of these consecutive 10-year sentences, the superior court stated that it was compelled to give primacy to the consideration of the need to protect the public. In elaborating on this theme, the sentencing court stated:
Four cases of receiving and concealing, two cases of burglary, a forgery case, assault and battery — certainly this isn’t a situation where I’m . . . concerned about the public’s safety from violence or physical harm, but I’m certainly considering — am taking into account the fact that they have a right also to be secure in their possessions, which is a right that you [Price] have not, in my opinion, af
forded to the people of this community or the communities you lived in.
Additionally, we think it of significance that the superior court took a rather dim view of Price’s chances of rehabilitation.
In this appeal Price points out that the superior court imposed the maximum possible sentence authorized by AS 11.20.-080
for the crime of burglary in a dwelling, and that the sentence imposed for the crime of attempting to procure a female for prostitution,
“in many ways also represented a maximum sentence.” Price .argues that the superior court’s imposition of consecutive maximum sentences for the three felonies involved was impermissible absent a characterization of Mr. Price as the worse offender in his class.
The state counters, arguing:
Although the Court did not use the words ‘worst offender,’
Galaktionoff v. State,
486 P.2d 919, 924 (Alaska 1971), requires only ‘some foundation for characterizing a defendant as the worst type of offender.’ The magic words were not said in the case at bar, but the foundation for that conclusion was clearly stated by the court at sentencing.
Our review of the record in the case at bar has led us to the conclusion that the superior court’s imposition of consecutive 10-year sentences for the burglaries was not excessive. In light of the sentencing objectives articulated by this court in
State v. Chaney,
477 P.2d 441 (Alaska 1970), and its progeny, we hold that the superior court was not clearly mistaken in imposing two consecutive 10-year sentences for the burglaries. Inherent in our holding is the belief that Price’s prior criminal record provided ample justification for imposition of consecutive maximum sentences for the-two burglary in a dwelling convictions. For Price’s prior criminal record furnishes sufficient foundation for characterization of Price as the worst type of offender within the class designated by the legislature.
Our difficulty with the superior court’s sentence centers on the imposition of a consecutive 10-year term of imprisonment for the offense of attempting to procure a female for prostitution. Given the circumstances of this particular offense, we are of the opinion that the superior court was clearly mistaken in imposing a consecutive sentence of 10 years imprisonment. Here the record shows a peripheral type of attempt which only involved solicitation and nothing more. Given the severity of
the consecutive 10-year term, we have concluded that the matter should be remanded for resentencing as to this particular offense.
Thus, we conclude that the sentences imposed by the superior court for the crimes of burglary are not excessive and are Affirmed. The sentence of 10 years for the crime of attempting to procure a female for prostitution is held excessive in the circumstances of this case, and is therefore vacated and the matter remanded for further sentencing proceedings,