BEARD v. STATE, A-8792 (Alaska App. 1-5-2005)

COATS, Chief Judge.

The State indicted Ted C. Beard for multiple counts of first and second-degree sexual abuse of a minor for the sexual abuse of his three stepdaughters, age 11, 14, and 15 from June 2000 through March 2003. Beard entered into a plea bargain with the State, pleading no contest to one consolidated count for each victim: two counts of sexual abuse of a minor in the first degree and one count of sexual abuse of a minor in the second degree. As part of the plea agreement, Beard admitted to statutory aggravating factors: that "the conduct constituting the offense was among the most serious conduct included in the definition of the offense;" and that his offenses were committed against a member of his family living with him and that he had engaged in similar conduct with more than one victim."

AS 12.55.155(c)(10).

AS 12.55.155(c)(18)(A) and (B).

Superior Court Judge Michael L. Wolverton imposed a composite sentence of 28 years of imprisonment with 10 years suspended. Beard appeals from this sentence, arguing that it is excessive. We remand.

In State v. Andrews, this court recognized a benchmark sentencing range of 10 to 15 years to serve for first felony offenders convicted of aggravated instances of child sexual abuse. We stated that, for these purposes, aggravated cases were those in which the defendant abused multiple victims, or committed multiple assaults on the same victim, or inflicted serious injury on one or more victims.

707 P.2d 900 (Alaska App. 1985); aff'd on other grounds, 723 P.2d 85 (Alaska 1986).

Id. at 913.

Id.

Given the undisputed facts of Beard's case (his repeated abuse of three victims), his case falls squarely within the Andrews category of aggravated cases. Based on these facts alone, Beard could properly receive a sentence of up to 15 years to serve. The question, however, is whether Judge Wolverton might properly sentence Beard to 18 years' imprisonment.

In general, benchmark ranges are "predicated upon our review of past sentencing decisions dealing with similarly situated offenders." Our intent in establishing benchmarks was to create "historically-based starting points for individualized analysis in each case . . .". We intended to carry out the legislature's expressed desire to eliminate unjustified disparity in sentencing.

Williams v. State, 809 P.2d 931, 933 (Alaska App. 1991) (quoting McPherson v. State, 800 P.2d 928, 933 (Alaska App. 1990) (Bryner, C.J., concurring in part and dissenting in part)).

Id.

Id. at 934; AS 12.55.005.

We have stated that "the 10- to 15-year benchmark range established in Andrews is not an inflexible rule of law, but rather a historically based starting point for analyzing [the defendant's] sentence under the particular facts of his case. If there are articulable and valid reasons for imposing a sentence outside that benchmark range, the resulting sentence will not be clearly mistaken." "At a minimum, however, the principle of reasonable sentencing uniformity requires a sentencing judge who decides that an offender deserves a sentence which is significantly different from sentences previously given to similarly situated offenders to expressly find some legitimate basis for the difference — some basis related to `legally relevant sentencing criteria.' . . . That basis should be spelled out on the sentencing record, so that the defendant and a reviewing court can understand the reasons for the disparity." Where a court concludes that it is necessary to impose a sentence above the benchmark range, the court must explain the reason for the departure, generally by comparing the defendant's case to the facts of previously decided cases.

Sharp v. State, 837 P.2d 718, 727 (Alaska App. 1992) (citation omitted).

Williams, 809 P.2d at 935.

Sharp, 837 P.2d at 725-27; Williams, 809 P.2d at 934-37.

In the present case, Judge Wolverton did not expressly recognize the Andrews benchmark range nor did he give any reason for imposing a sentence that exceeded the Andrews benchmark. Under these circumstances, we have no way to understand the reason for the disparity between the benchmark range and the sentence which Judge Wolverton imposed in this case. We accordingly conclude that we must remand Beard's sentence to the superior court to reconsider its sentence.

Beard's sentence is VACATED and this case is REMANDED to the superior court for reconsideration.

As we have said, the facts of Beard's case clearly justify a composite sentence within the Andrews benchmark range for aggravated cases of sexual abuse of minors. If, upon reconsideration, Judge Wolverton concludes that Beard should receive a sentence within the Andrews benchmark range, he is authorized to impose that sentence and enter an amended judgment. The judge shall notify us of this fact, and we will then close this appeal.

If, however, Judge Wolverton again concludes that Beard should receive a sentence higher than the Andrews benchmark range, Judge Wolverton should make specific findings explaining his reasons for departing from the benchmark range. The judge shall transmit his findings to this court within 90 days. The parties shall then have 30 days to file memoranda responding to Judge Wolverton's findings.

Upon receipt of Judge Wolverton's findings and the parties' responding memoranda, we shall resume our consideration of Beard's sentence appeal.

We retain jurisdiction of this case.