Evan v. State

COATS

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.

Appeal from the District Court, Fourth Judicial District, Bethel, Marvin Hamilton, Judge.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Thomas J. Aliberti, Assistant District Attorney, Bethel, and Richard Svobodny, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.

Summary

Deacon Evan was convicted of sexual assault in the first degree in 1989 and was sentenced to thirty years with ten years suspended. Evan served his sentence and was released on probation. In December 2010, Evan appeared before Superior Court Judge Marvin Hamilton on a petition to revoke his probation. Judge Hamilton imposed three years and ten months of Evan's previously suspended sentence.

In imposing this sentence, Judge Hamilton concluded that Evan, as an untreated sex offender who had demonstrated that he would not abide by conditions of probation, was a dangerous offender and the sentence of three years and ten months in prison was necessary to isolate Evan from society and to protect the public. Judge Hamilton also concluded that it was necessary to impose that sentence to deter Evan from ignoring his conditions of probation.

Evan points out that, in considering the length of sentence to impose, Judge Hamilton also considered the Department of Corrections's (DOC) representation that Evan would need to be sentenced to a term of at least three years and ten months of imprisonment in order to qualify for admission to a sex offender treatment program while imprisoned. Evan argues that this violated the principle that the Supreme Court adopted in Pears v. State, where the Alaska Supreme Court, relying on the ABA Standards on Sentencing Alternatives and Procedures, held that "rehabilitation of an offender, as distinct from his deterrence, should not serve as a basis for extending a prison term or selecting imprisonment as a sentence." Evan argues that because Judge Hamilton considered the DOC's representation in fashioning his sentence, the court set his term of imprisonment based upon rehabilitation. We reject this argument because the record shows that, although Judge Hamilton considered the length of the sentence he would need to impose for Evan to complete a sex offender treatment program, Judge Hamilton independently justified the sentence he imposed.

Factual and procedural background

In March 1988, Deacon Evan raped his first cousin. In February 1989, he pled no contest to one count of first-degree sexual assault. According to the presentence report, Evan twice raped his first cousin at knife point and threatened to kill her and her sister if she told anyone. The presentence report set out Evan's extensive criminal history over a period of eighteen years, including two prior felony convictions and a history of violence. The presentence report concluded that Evan was "an extremely dangerous and unpredictable person, and certainly among the worst offenders in this class of offense." He was sentenced to thirty years, with ten years suspended and twenty years to serve.

Evan spent most of the ensuing two decades in jail. In August 2007, Evan was placed on probation for five years. The following year, in June 2008, the State filed an initial petition to revoke Evan's probation, alleging that he had violated his conditions of probation. In December 2008, Superior Court Judge Douglas Blankenship revoked twenty-two months of Evan's probation. Judge Blankenship added an additional condition of probation which required Evan to receive sex offender treatment through the DOC. In addition, Judge Blankenship ordered Evan, as a condition of probation, to report to the North Star Center upon his release from imprisonment and to reside there for a period of six months.

A year later, in September 2009, Evan was again released from jail. Evan did not report to the North Star Center or the probation office. He apparently spent a year at his family's homestead at Deacon's Landing, roughly eighty miles downriver from McGrath.

Evan was eventually arrested by an Alaska State Trooper. When contacted, Evan had a firearm, which he put down when the trooper approached him. The trooper found four firearms in Evan's residence, along with marijuana. The State filed a petition to revoke Evan's probation. Evan admitted violating his probation.

At disposition, the probation officer, Angela Kirby, pointed out that Evan had violated his probation by not reporting to the North Star Center and absconding to Deacon's Landing, and by possessing firearms and marijuana. Kirby pointed out that Evan had been discharged from substance abuse treatment for using drugs and alcohol during treatment and had also been discharged from sex offender treatment for not following the rules of the program. She recommended that the court impose a three-and-a-half year sentence because that would allow Evan to complete the sex offender treatment program while incarcerated at Lemon Creek Correctional Center in Juneau. She also recommended that, upon release, Evan should be required to complete the community-based program in Bethel.

Judge Hamilton agreed that Evan needed to be in sex offender treatment and continued the hearing to determine whether Evan could undergo sex offender treatment in Bethel.

One month later, the Tundra Center and Community Sex Offender Management Treatment Team in Bethel reported that Evan's prior conviction for escape made him ineligible for treatment at the Center or any similar program. The Tundra Center recommended that Evan complete the sex offender treatment and the substance abuse program at Lemon Creek before being released to the Tundra Center.

Judge Hamilton concluded that it was important for Evan to receive sex offender treatment as part of his sentence. But he also directly addressed Pears, pointing out that it would be improper for him to put Evan in jail simply so Evan could receive treatment.

Judge Hamilton recognized that when determining an appropriate sentence for a probation revocation, the Chaney sentencing criteria required him to consider Evan's prior background, including Evan's criminal history, the seriousness of the original offense, and Evan's conduct on probation.

Judge Hamilton pointed out that Evan's original offense was extremely serious. Evan had twice raped his first cousin at knife point and had threatened to kill her and her sister. He pointed to Evan's extensive criminal record and his probation violations, including his refusal to comply with any substance abuse or sexual offender programs. He noted that all of the recommendations he had received urged that Evan needed to receive sex offender treatment.

Again, Judge Hamilton recognized that it would be improper, under Pears, to sentence Evan to imprisonment so that he could receive sex offender treatment. But Judge Hamilton's consideration of Evan's need for treatment was part of his broader consideration of the other Chaney sentencing criteria. He concluded that Evan would be a danger to the public if he did not receive sex offender treatment. Therefore, isolating Evan from society was an important sentencing consideration. He also considered the fact that Evan had consistently failed to follow court orders while he was on probation. That made Evan a danger to the public and also justified sanctioning Evan to deter him from continuing to ignore court supervision.

The probation officer, Angela Kirby, then suggested that the court needed to sentence Evan to three years and ten months of imprisonment to give Evan the opportunity to have a sufficiently long sentence to qualify for the sex offender program at Lemon Creek (rather than the three-and-a-half years she had previously requested). This is the sentence Judge Hamilton imposed. He recommended, as part of his sentence, that the DOC place Evan at Lemon Creek in order to participate in the sex offender treatment program.

Judge Hamilton concluded that Evan was dangerous if he did not have sex offender treatment and that the only way for Evan to obtain sex offender treatment was in prison. But Judge Hamilton emphasized that treatment was not the purpose of the sentence. He indicated that the sentence would allow Evan to pursue treatment. But he also stated that the sentence of three years and ten months was necessary in light of Evan's original offense and his failure to follow court orders.

Why we uphold Judge Hamilton's sentencing decision

Evan argues that Judge Hamilton erred in imposing this sentence. He contends that, from the sentencing record, Judge Hamilton sentenced him based upon the conclusion that Evan needed to complete a sex offender program for purposes of rehabilitation. Evan argues that Pears forbids this. But the facts underlying Evan's case are substantially different than the facts the Alaska Supreme Court addressed in Pears.

The defendant Pears was convicted of two counts of murder in the second degree and one count of assault in the second degree for killing two people and injuring another in a collision Pears caused while driving while intoxicated. Pears was twenty years old, had no prior felony convictions, and no prior convictions for driving while intoxicated or reckless driving. The superior court sentenced Pears to a composite sentence of twenty years of imprisonment.

In determining that Pears's sentence was excessive, the Supreme Court analyzed several sentencing criteria as they applied to him. The Court criticized the superior court's conclusion that Pears "needed a substantial period of time in prison in order to effect his rehabilitation." The Court reasoned that since Pears had a relatively good past record, he appeared to have good prospects for rehabilitation. The court stated: "[W]hile rehabilitation is a legitimate objective of sentencing, it is difficult to view rehabilitation as a justification for a long prison term. There is a growing consensus that rehabilitation of an offender, as distinct from his deterrence, should not serve as a basis for extending a prison term or selecting imprisonment as a sentence." The Court relied on the ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures § 18-2.2 at 18.57 (Approved Draft 1979). The Court quoted the ABA Standards for Criminal Justice: "The view of rehabilitation taken by these standards involves a critical distinction: rehabilitation is a proper goal of corrections but an improper justification for it. It is desirable that offenders have access to treatment but undesirable that they be sentenced to prison for treatment."

The principle that the Alaska Supreme Court relied on is now set out in the ABA Standards on Sentencing § 18-3.12(a)(iii)(1994). The commentary explains that, while "rehabilitation, standing alone, is an insufficient basis for the imposition of a criminal sanction, ... rehabilitation may appropriately be weighed in every case where there is an independent basis for imposing a sanction, so long as the perceived need to rehabilitate does not result in a sentence more severe than the independent basis would require."

The commentary sets out a helpful example:

Imagine, for example, that a young offender has been convicted of a minor crime, such as shoplifting a screwdriver. Imagine further that the offender can be shown to have serious psychological and educational defects that make it appear likely that he will reoffend, but that will take many years of therapy and training to cure. [The Standard] provides that it is improper to fashion sentences based on rehabilitative need standing alone. Otherwise, in the above illustration, the judge might pronounce a five- or ten-year prison sentence on the belief that a lesser term would be inadequate to reform this offender. The Standard asserts that sentence severity must always be limited by goals other than rehabilitation. Thus, for the theft of one screwdriver, no more than a penalty at the low end of the sanctions continuum would be warranted. Within that ceiling, the sentencing authorities are free, and indeed are encouraged, to designate a sanction or combination of sanctions geared toward rehabilitation or treatment.

We conclude that the sentence which Judge Hamilton imposed did not violate the principle that the Supreme Court set out in Pears. Judge Hamilton did not sentence Evan to three years and ten months of imprisonment based solely upon the sentencing goal of rehabilitation. Rather, Judge Hamilton relied on other sentencing goals to justify the sentence he imposed. Based upon Evan's extensive criminal background, the seriousness of his prior offense, and the fact that Evan was an untreated sex offender who would not follow court orders, he concluded that Evan was a dangerous offender and that it was necessary to isolate Evan in order to protect the public. He also concluded that it was important for him to sanction Evan in order to deter him from continuing to refuse to obey court orders.

Evan also argues that the sentence which Judge Hamilton imposed was excessive. But we conclude that in light of Evan's prior criminal history, the seriousness of his prior offense, and his failures on probation, the sentence which Judge Hamilton imposed was not clearly mistaken.

The judgment of the superior court is AFFIRMED.