Opinion
Court of Appeals No. A-12956 No. 6881
07-01-2020
CHRISTOPHER DAVID DEE JACKSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Gary Soberay, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Arne F. Soldwedel, Assistant District Attorney, Anchorage, and Kevin G. Clarkson, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-14-07510 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Gary Soberay, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Arne F. Soldwedel, Assistant District Attorney, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge ALLARD.
Christopher David Dee Jackson appeals his sentence, arguing that the superior court relied on incorrect and inapplicable facts when sentencing him. Because we have questions regarding the factual basis for the court's sentencing, we remand this case to the superior court for resentencing.
Background facts
Jackson pleaded guilty, pursuant to a plea agreement, to third-degree sexual abuse of a minor for having sex with his fifteen-year-old cousin when he was twenty-one and twenty-two years old. Jackson also pleaded guilty to fourth-degree misconduct involving a controlled substance and to furnishing alcoholic beverages to a person under the age of twenty-one for providing the same cousin with marijuana and alcohol. As part of the plea agreement, the parties stipulated to the aggravating factor that Jackson's conduct constituting third-degree sexual abuse of a minor was among the most serious conduct included in the definition of the offense, because it in fact constituted second-degree sexual abuse of a minor. The plea agreement left Jackson's sentence open to the discretion of the sentencing judge.
AS 11.41.438(a) (third-degree sexual abuse of a minor where the offender, 17 years of age or older, "engages in sexual contact with a person who is 13, 14, or 15 years of age and at least four years younger than the offender").
Former AS 11.71.050(a)(2)(A) (post-July 2016, pre-June 2017 version) and AS 04.16.051(a), respectively.
AS 12.55.155(c)(10) (authorizing sentence above the presumptive range if "the conduct constituting the offense was among the most serious conduct included in the definition of the offense").
As a first felony offender, Jackson faced a presumptive suspended term of imprisonment of 0 to 18 months for both the third-degree sexual abuse of a minor conviction and the fourth-degree misconduct involving a controlled substance conviction. However, because Jackson stipulated to the "most serious" statutory aggravator, the court was authorized to impose a definite term of imprisonment of up to 5 years for the third-degree sexual abuse of a minor conviction. The maximum sentence for furnishing alcoholic beverages to a person under the age of twenty-one was 30 days.
Former AS 12.55.125(e)(1) (post-July 2016, pre-Nov. 2017 version).
AS 12.55.155(c)(10); AS 12.55.125(e).
Former AS 12.55.135(a)(2) (2017).
At sentencing, the defense attorney argued for a probationary sentence. The State argued for a sentence of 4 years to serve with no suspended time. The superior court ultimately sentenced Jackson to a composite sentence of 5 years and 20 days with 1 year suspended — i.e., 4 years and 20 days to serve.
The superior court reached this composite sentence by sentencing Jackson to 5 years with 1 year suspended (i.e., 4 years to serve) for the sexual abuse of a minor count, 18 months with 18 months suspended (i.e., no time to serve) for the controlled substance misconduct count, and 20 days' active imprisonment (to be served consecutively) for the furnishing alcohol count.
In explaining its sentence, the superior court made primarily favorable findings under the Chaney criteria. The superior court found that Jackson had no prior criminal history and that his likelihood of rehabilitation was "fair to good." The court also found that Jackson was not a danger to the public and that there was no need to confine Jackson to prevent future harm to the public. The court likewise found that deterrence was not a primary consideration because Jackson was unlikely to repeat his conduct. The court therefore found that the primary considerations for Jackson's sentence were community condemnation of this conduct and restoration of the victim and the community.
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); see also AS 12.55.005 (codifying Chaney factors).
The superior court also found that Jackson's conduct was more serious than it might otherwise have been because the sexual abuse charge intersected with the furnishing and misconduct charges. According to the court, it was "undisputed here that [the victim] was furnished with alcohol and marijuana in order to lower [her] inhibitions as part of the — as a precursor to the sexual activity that occurred."
However, the record shows that this fact was disputed by both Jackson and the victim. At one point, Jackson interrupted the judge to personally explain that he had not gotten the victim drunk or high in order to have sex with her. He asserted that the charges of providing her with alcohol and marijuana were unrelated to the sexual conduct — that "the two [crimes] never met."
The victim also viewed the furnishing and misconduct charges as largely separate from the sexual relationship she had with Jackson. As described in Jackson's presentence report, the victim had told the investigating officer that she had used marijuana on the same day that she and Jackson first had sex, but that she had only consumed alcohol a few times — and never when they had sex. She also stated that all of the sexual contact was "mutual" and that Jackson never hurt her.
The victim expressed similar sentiments at the sentencing hearing two-and-a-half-years later when she was eighteen years old. She stated that the sexual contact "was not a one-way situation" and she asserted that her parents were "blowing it completely out of proportion to how I feel about the situation." She hoped that the parties would "see the potential that [Jackson] has to come out of this" and requested he not "just sit for years for something that's totally blown out of proportion."
In response to the victim's statements at sentencing, the judge referenced his own experience in "handling criminal cases every day," stating that
I don't think the victim comprehends that she was used as an object of sexual gratification, gotten drunk and high in order to do so.The judge further opined that "there's likely to be harm that will surface over the years that isn't apparent right now."
Why we conclude that a remand for resentencing is appropriate
On appeal, Jackson challenges the superior court's finding that Jackson got the victim "drunk and high" in order to have sex with her. According to Jackson, the record does not support this finding.
We have reviewed the record, including the sentencing hearing, the presentence report, and the grand jury testimony. Based on that review, we agree with Jackson that the record does not support the superior court's finding that Jackson got the victim "drunk and high" in order to sexually abuse her.
This is not to say that the drugs and alcohol were entirely unrelated to the sexual abuse. Jackson admitted to furnishing the victim with marijuana and alcohol in addition to having sex with her, and there is at least one instance when the victim consumed marijuana on the same day that she had sex with Jackson. But the record does not otherwise support the superior court's finding that Jackson deliberately used the marijuana and alcohol to "lower [the victim's] inhibitions" and to make her have sex with him. The court therefore erred to the extent that it relied on this finding in sentencing Jackson.
Jackson also challenges the superior court's reliance on its own experience as a criminal judge when assessing the harm to the victim. According to Jackson, it was improper for the court to rely on facts outside the record in this manner.
We agree with Jackson that sentencing is an individualized process that should primarily be focused on the person being sentenced and the particular facts of the case before the judge. Judges should be cautious about assuming certain facts about a class of offenders when there is no evidence to support those assumptions in the particular case.
However, we do not agree that this means that judges cannot rely on their past judicial experiences to inform their sentencing decisions. As one appellate court has explained:
The sentencing judge is not required to determine sentences in a vacuum. Though it would be error for a sentencing judge to consider only his past experience or to give his past experience controlling weight over other factors, past experience is an appropriate factor for the sentencing judge to consider along with the facts of the particular case before him.
We therefore do not believe that the sentencing judge necessarily acted improperly when he referenced his own past experiences in other criminal cases.
State v. Tully, 430 So. 2d 124, 127 (La. App. 1983); see Butler v. State, 358 P.3d 1259, 1264 (Wyo. 2015) (quoting Tully, 430 So. 2d at 127).
State v. Tully, 430 So. 2d 124, 127 (La. App. 1983); see Butler v. State, 358 P.3d 1259, 1264 (Wyo. 2015) (quoting Tully, 430 So. 2d at 127).
We are troubled, however, about the nature of some of the judge's remarks. There is no single, monolithic victim experience, and judges should be careful to speak in a manner that respects those differences and does not devalue a victim's sense of their own agency.
See Alaska Const. art. I, § 24 (declaring that "crime victims have the right to be treated with dignity, respect, and fairness during all phases of the criminal and juvenile justice process"). --------
Conclusion
We REMAND to the superior court for resentencing in conformity with this opinion. We retain jurisdiction. The court shall have 120 days in which to conduct resentencing. This deadline can be extended by the superior court for good cause conditioned upon a status report to this Court.