*1 1024 (Alaska 1981); see Hel P.2d
mer v. than Tookak’s record is worse
While
Hintz’s, serious4 Hintz’s crime was more Tookak’s we do believe
and on balance thirty should
total sentence exceed was re
years to which Hintz’s sentence
duced. court is judgment superior RE- part AFFIRMED in
therefore is REMAND- part the case
VERSED
ED not to resentencing to a total term thirty years.
exceed HOUSTON, Appellant, David
James Alaska, Appellee.
STATE
No. 5364. Appeals
Court of of Alaska.
July 1982. Thus, Hintz, previously 4. 13° the facts of this who had been convicted of in minus weather. Hintz, felony, burglary not one a 1975 conviction for case are almost to those identical kidnapped gunpoint, dwelling, except S. at of the abandon- in a R. circumstances posed greater risk of death drove her her own vehicle to a secluded ment which a much place her, raped exposure B. to D. her. then abandoned from R. S. than He leaving jacket her clothed and a in boots *2 Defender, Fabe, Public Dana Asst. Defender, Shortell, Anchorage, Public Brian appellant. Branchflower, Atty., Asst. Dist. Stephen Weeks, Atty., Anchorage, Larry R. Dist. Juneau, Condon, Gen., Atty. Wilson L. appellee. BRYNER, J., C. and COATS Before SINGLETON, JJ.
OPINION SINGLETON, Judge. appeals his sentence
James Houston three imprisonment, with fifteen-years nolo following his suspended, imposed formеr manslaughter, plea contendere Houston AS 11.15.040. of second-de-
charged with and convicted
previously appealed
He
gree murder.
reversed,
conviction and
failure to
error in the lower court’s
finding
separate
trial on
grant
bifurcated
and in
and self-defense
insanity
defenses of
counseling. Upon his release
chological
compelling
psychiatrist
hired
the court’s
against
drinking heavily again,
the de-
testify
began
the defense to
State, fendant. Houston v.
little recollection of
subsequently had
remand,
the dis-
(Alaska 1979). After the
during
the events
the time between
man-
charge
attorney changed
trict
discharge
shooting.
pleaded no contest to
slaughter. Houston
*3
diagnosed Houston as
psychiatrists
Three
6,May
hearing
on
1980. After
charge
Although they
alcoholic.
disa-
chronic
parties
and the testimo-
argument from
responsi-
whether he was
greed
lеgally
over
officer, the trial court
ny of a correctional
night
on the
of the shoot-
ble for his actions
which forms the basis
imposed the sentence
shooting appeared
ing, they agreed that
appeal.
of this
to have occurred as a reflex reaction —a
opin-
in the
Houston’s crime is described
one
response
perceived
to a
threat such as
court,
ion of
Vietnam. He had no
record.
criminal
teen
after his convic-
years’ imprisonment
Vietnam,
Following
began
his service in
Resentenc-
second-degree
tion for
murder.
to drink heavily.
drinking
intensified
occurred in
manslaughter plea
on the
after he came
Eight days
to Alaska.
before
May,
judge
before the same
who con-
shooting, he
into El-
checked himself
trial,
sentencing.
Hospital
mendorf
ducted the
and
for alcohol abuse treat-
diagnosed
ment. He was
Houston was
a sentence of fifteen
a chronic alcoholic
and released to
with three
sus-
military
years’ imprisonment,
years
resume his
duties
two days
pended.
before the
had been
for the
crime. He
judge.1
detoxified but had
psy-
briefly
received little or no
tence were
set out
explanation given by
1. The full
look at these fаcts and think
terms
aggra-
manslaughter,
is as follows:
be the most
this would
manslaughter.
my legal
type of
But
vated
training
you
I sentenced
to 15
[W]hen
for the
justice
and ideas of
demonstrate
degree
second
murder
took into considera-
resentencing,
adjustment
me that on
some
your age
your background
your
tion
and
going
you
I’m
to sentence
has to be made.
problem
your
with alcohol and
substantial
you’ll
suspend
I’ll
3 of it and
anything
time in Vietnam. Whether that had
placed
probation
period
on
then for a
of time
this,
know,
to do with
the
I don’t
Ibut
listened to
you’re
having
released.
I think that
psychiatrist
suggest
which would
probation
some contact with a
officer
might
reaction;
have been an automatic
probably going
helpful in
....
to be
this case
persuaded
really
I’m not
that that’s
all that
Houston,
your
pleased
And
I am
Mr.
meaningful in this situation .... When I
the court
ad-
adequately
at
conclude
lodges
separate
four
First, Houston
tacks on his sentence.
Less
is the
adequate
rehabilitation.
dressed
failed to
sentencing judge
claims
isolation, deterrence,
af-
treatment of
factors.2
adequately
discuss
Al
community
firmation of
norms. Where
the goals
“need
recite
though
rejects
probation
as a suitable
as
is clear
it
long
that a
period
concludes
Evans
goals”
considered those
has
order,
incarceration is in
the record should
1978),3
explana
full
Incar-
reflect the basis for that conclusion.
tion of a
decision contributes to
ceration and isolation are not synonymous.
facilitates
rationality
may
A
feel that a
of incarcera-
pro
evaluation of the
reviewing
deter-
necessary
tion is
for rehabilitation or
public
fosters
priety
emphasize
rence to
defendant
justice system.
in the criminal
confidenсe
likely
of his offense and the
seriousness
A full
also aid
correc
*4
However, as a
of
consequences
recidivism.
therapeutic
authorities and have
val
tional
for
goal,
is reserved
isolation
accept
in
to
assisting
ue
the defendant
his
those
can be
rehabilitated nor
who
neither
Alpiak
v.
sentence without
bitterness.
deterred;
is,
reasonably
who are
that
those
State,
State,
v.
n.2;
Perrin
2. State v. 477 441 P.2d sup- the court’s decision is conclude that trial ported by evidence and is consist- State, 50, substantial 3. See also Padie v. P.2d 62 n.40 594 criteria, Chaney State, the ent the we will affirm (Alaska 1979); Chappell 592 P.2d concluding judge’s though Alpiak 1979); even the (Alaska 581 isolation, remarks, incomplete. (Alaska viewed in are n.2 clear considered Here it is the judges specifically prefer 4. We would that trial despite dangerous and believed that Houston Chaney address each of the criteria and ex- prison previous good record pressly relate to the facts the each criterion military, long period good a record the specific court considers relevant case necessary imprisonment protect the was to clearly identify it. before Such remarks should however, would, public. the trial We remind preference, criteria ex- accorded of the comment voiced bench preference plain why given, was should be 575, 578 n.7 in Amidon v. presented concluding par- remarks after (citations omittеd), (Alaska 1979) where the arguments ties’ final allo- the defendant’s court said: guidelines strictly cution. enforce these To practice judges ‘rea- caution [W]e would, however, result in remands resen- previous resen- dopting’ sentence remarks tencing in a substantial number of cases with tencing Due care must inadvisable. little likelihood that the ultimate results would thorough taken to demonstrate change. why In order to determine the trial thoughtful decision. specific we will re- may code note that new criminal also hearing view the record of the entire require a more statement of detailed presented, per- sider evidence the issues Houston’s second and third claims must to ascertain the rea endeavor are impermissible sons for a criminal in order to episode considerations en deter mine the tered into the decision. likelihood of reоccurrence He ar consequent if danger, any, presented by gues that certain remarks of the sentencing the defendant community. Other judge, just prior directed to him things being equal, unexplained killing announcement indicate longer warrant a of incarcera the judge improperly specula relied on tion protect public than one where tion that was shooting racially motivate the likely suggests causes that d.5 responds state there was can be cured or controlled. Cf. Nelson v. evidence to suggest in the record n.2 App. killing racially motivated and that 1980) (Inexplicable of crime cited as nature judge’s comments reflect inability one justifying the factors the trial to ascertain the reason true for the shoot the prospect court’s conclusion that ing. We agree with state that unlikely). defendant’s rehabilitation was judge’s comments reflect his perplexity over a killing which was difficult to under next other re argues stand. The judge’s remarks followed Hous marks indicate that ton’s own concerning statement his inability the judge prosecu relied on the improperly explain shooting. Under these cir tor’s argument that Houston’s offense was cumstances, we no error. really find The trial We are degree-murder.6 first satis- by present you you than that mandated case THE if law. See COURT: course look—if Of *5 Interpretation 12.55.025(a). facts, AS must, however, of this section take a hard it look at the looks more anything cases await decided under the like else murder one than but I new code. realize it’s .... Well, Honor, MS. FABE: I think —it Your Appellant points following 5. remarks: just couldn’t be murder one because there’s Houston, THE COURT: But Mr. I’ve often speculated why you as to have some —I Well, mean, just_ THE COURT: I know, frightening you conclusions. You premeditation. MS. FABE: ... no I meаn it bought day gun you that and loaded it happened quickly I was—it so that think that you and people were—indicated some fear of the there’s no .... surrounding you. that were It’s a THE COURT: Course we don’t .... thing really always that’s terrorized me was question MS. ... .... FABE: hope you that I that didn’t decide on that quickly THE COURT: We don't know how it you going occasion that to kill a white were lasts. man. That’s—I often wondered about that. premeditat- MS. he FABE: ... couldn’t No, MR. it HOUSTON: didn’t come down ed .... like that. bought gun THE COURT: I mean he THE COURT: Didn’t come down like that. day. one same It takes second. You MR. HOUSTON: No. point gun you somebody take a out and it at THE it COURT: Because doesn’t make you pull trigger. and How much time only thought sense. But that’s the that ran required premeditation. point You for through my mind. I don’t—I wasn’t too im- him, you bought weapon loaded it the pressed robbery, with the idea that it was a I you know, day gun knows what a same he just why your don’t know it didn’t—but from do, you apart will but .... it’ll blow you rеmarks that made in the other bar Well, though MS. FABE: I that [sic] you suggest which would me that felt testimony that he at trial indicated was suf- hostility some and assume that it would be I again, fering right, jury from—all did race, from a so-called but I don’t dominant say apparently not mean it’s hard to what —I worth, know. But for whatever it’s that weight this since it’s not the can thought my through ran I’m mind and not theory jury apparently that the subscribed to persuaded that that’s the reason but that but .... thought through you ran mind so can agree you, THE I with COURT: don’t—I reflect on that .... two, got I’ve was convicted of a man- murder question 6. The comments in include the follow- slaughter, I have to I realize reduce argument remarks: you from don’t have gave for what MS. him FABE: ... was an me because unusual [Sumabat ] gave manslaughter. The reason I kind looked like murder one. And I would submit things him 15 because this one is well. And the .... See, Notaro v. e.g., sentence judge did not that the fied 1980); Padie v. (Alaska murderer. as a convicted the demeanor of observed uncertainty surrounding Because and heard their examination the witnesses killing Houston’s motivation for under Testimony cross-examination. which his mental and emotional extent to subject to cross-examination is oath and recidivism, present states the risk of further appropriate for consideration length we cannot conclude necessary fact making trial court “clearly Although mistaken.” findings preparation imposition conduct the trial court found Houston’s sentence. The court’s remarks indicate commendable, custody while he was in felony mur rejected theory state’s assurance that finding provide does not der, i.e., a murder committed in the course effectively function outside a Houston could robbery, finally of a discounted racial environment. prison crime. The motivation as the basis of the regarding gen court remained in doubt assume that the trial court’s We crime, by the esis of the a doubt shared psychologi provision failure to include a prejudicial defendant himself. We find no judg the final counseling cal and alcohol the trial error the comments made since it was included oversight ment was an dialogue in his with counsel and the Therefore, we original judgment. defendant. judg present amendment of the direct the argument final is that a sen- ment to reflect that recommendation. years’ imprisonment tence of fifteen however, a recom this is recognize, three is excessive. The years suspended mendation, order, that the final not an isolation, argues goals state reha regarding determination deterrence, community condemnation administrative, ju services is bilitative even if the support present sentence express opinion we no Finally, dicial. require record shows that Houston does not Procedure Rule of whether Alaska Criminal further incarceration for his rehabilitation. in releas warrant a trial 35(b) would *6 of a convict shortening the sentence ing or light finding, sup In which is dan judge trial believes ed felon whom the record, commit ported by the that Houston of a solely because community gerous iso unexplained requiring ted an homicide and the the disagreement between we con protect community, lation to the the convict’s over Division of Corrections clude the sentence is not excessive. In that counseling psychological or need for alcohol circumstances, of ten appropriate sentences treatment. manslaughter or more for are not years court is superior the judgment The mistaken even where the defendant clearly as modified.7 background. AFFIRMED good is a first offender with a possibility soldier, you’re talking good possibilities existed. The first four about. He was a thorough, alcohol, court, given problems more he was intoxi- trial a he had is that the thoughtful, isting cated, of the ex- but I all those .... evaluation took and sensitive (Emphasis unlikely, added). record, reduce might, however favorably for modify existing sentence or argues judge could 7. The dissent that the trial possibility is that second the defendant. expla- probably more in and nation of his reasons at should have said court, the trial appellate uncertain resentencing. We imposed, for the court’s not, however, agree. agree do that a re- expressed more might, reasons were if those trial court would mand for further comments result reduce and as a fully, deficient find them existing purpose in serve useful favorably the defend- modify the sentence or ant. court’s might that such a remand record and we fear appellate possibility The third cruelly hopes modifica- for a raise Houston’s legal errors in the opinion found certain which, record, sentence; hopes this on tion would might sentencing remand on which trial likely most not be realized. sentencing inadequate In those cases where findings triggered more of remands one or goals court “need not recite BRYNER, Judge, dissenting. Chief it that it has long as as is clear that the sen- Although I do not believe majority’s goals.” considered these in this superior court imposed by tence the decisions of the acknowledges opinion suspended— case —fifteen with three the im- emphasizing Supreme Alaska Court excessive, unable be I am necessarily would conclude, of a sentenc- majority explanation as does the full portance of a court, Sеe, adequately court e.g., superior that the trial court. decision I believe it is explained its sentence. Since State, 664, (Alas- Alpiak v. 665 n.2 proper that proposition a well-established v. Perrin 543 P.2d 1978); ka a sen- possible review is not appellate Chaney, v. 477 P.2d at State (Alaska 1975); forth, tencing adequately court does not set majority concludes 447. Yet record, imposing on the its reasons ad- case, adequately “the trial dissent. particular respectfully in a manner consistent dressed the facts appeal, in this As the state has conceded of these cases. with” the mandate Judge sentencing remarks did Buckalew’s assess- majority’s with the agree I cannot sen articulate the critical specifically Buckalew’s Judge adequacy ment of the Cha State tencing factors enumerated in view, the sen- remarks. (Alaska 1970). ney, Buckalew do not tencing Judge remarks of However, majori argues, the state con- appropriately make it clear that he ty agrees, of the court Chaney goals. The requisite sidered under Ev court’s remarks were sufficient provides given by ans v. (Alaska 1978), goals were any insight little if into which which court held clearly long mis- and so as the sentence is not result a reduced or modified sentence. The possibility appellate fourth perceived taken. McClain is that decision, highly unlikely record, appar- Given that some evidence in the court, ently further comments overlooked the trial which that a remand for might favorable to Mr.
the trial court’s remarks influence that would result in modification leniently court to deal more with the defendant. Houston. should, Finally, agree while we Aside from an unenforceable recommendation courts alcohol, course, drug, psychologiсal counseling pro- or alcohol be matter of recommend Houston, psychiatric such treat- vided a recommendation included in treatment wherever judgment inexplicably might helpful, but omitted ment we believe first second, from treatment of the relation between we do not understand dissent’s drinking suggest possi- and his crime includes two dissent to of the four first, logical error of bilities mentioned exist here. A sentence of 12 errors. The is the assum- hoc; fallacy appear ing post ergo proper to serve would hoc any degree believing follows anoth- someone convicted of of homicide that because one event causally reasonably related. Houston’s where the trial could er the two are clude, did, of substantial as this one based substantial crime drinking. followed record, diagnosed He has been as an alco- evidencе the trial that the defendant *7 intentionally stranger necessarily alco- killed a holic. It does not follow that shot and total apparent explanation alcohol without an or reason. hol caused this crime or that successful hope psychiatric eliminate the Houston’s for a reduced sentence was treatment would community. upon possibility poses based interpret Avery that this court would risk Houston to the concluded, record, light in of this that 1973) killing require ignore could find that Houston’s to a trial court to at sen- the trial court any tencing largely unexplained. in to careful review of facts the trial record relevant Our testimony concerning Chaney a implicit either alcohol evaluation which were not Houston’s any, jury’s psychiatric problems, if has not in the trial verdict or the defend- use and plea. rejected interpreta- changed second error ant’s We have that this view. dissent’s treatment, provid- Avery Huckaby if tion of in is to assume that alcohol ed, eliminating necessarily (Alaska App.1981), in we will in n.2 which succeed problems Houston has. We held that a consider facts whatever alcohol trial court agree optimistic regard but verified in the are material to the are less in this record which rehabilitation, availability protection might help. The defendant’s or the it cannot hurt and community, long resulting psychiatric to Houston so as the sen- of alcohol or treatment not, however, range permitted in our view mandate or tence is within the for the would substantially reduced sentence. crime to which the defendant was convicted even warrant a adjustment m to make some compelled felt considered, weight given amount of in of the sig- original facts deemed goals, or the Houston’s the various determining in judge by charge: nificant reduced these given to be weight amount justice ideas of training and my legal But sentencing goals. resentencing, that on to me demonstrate made. has to be adjustment some Careful examination deficiency. reveals their remarks train- “my legal this reference Certainly, Buckalew’s sen- Judge portion The initial be taken as cannot justice” and ideas of of a recitation consisted tencing explanation given had judge clear indication into been taken facts that had Chaney criteria. to the consideration account when Houston simply pronounced next Buckalew Judge tenced: the new sentence: to 15 you I sentenced [W]hen to 15 you to sentence going I’m I took into degree murder the second on placed it and you’ll 3 of suspend I’ll back- your age your consideration when of time for а probation then with alcohol ground your problem you’re released. time in Vietnam. substantial your statement, to do with with this anything conjunction Whether that had know, this, I listened to I don’t but judge said: suggest which would psychiatrist with a contact having some I think that an automatic reac- might this have been is probably release officer probation tion; real- that that’s persuaded I am not .... in this case helpful to be going situation meaningful in this ly all comment, as it can be insofar This reference passing oblique as an strued to the Cha- are unrelated These comments Houston, rehabilitate the need to they may To the extent that ney criteria. course of one made com- to refer back to have been intended can conceiv- sentencing explanation his ments made considera- indicating ably be viewed sentence, comments Houston’s criteria. Chaney tion Our su- inappropriate. must be deemed remarks in judge’s final specifically prohibited court has preme rec- express than nothing more Houston did prior sentencing practice “readopting” incar- while progress ognition of resentencing a explanations in the course of cerated: State, 604 P.2d Amidon v. defendant. See your Houston, pleased amI And Mr. (Alaska 1979). n.7 and I con- in confinement while progress next stated his conclu- Judge Buckalew sentence. sidered offense was the worst sion that Houston’s I look at these facts category: its “When that he took did indicate While manslaughter, in terms of and think determining progress note of man- aggravated type be the most would crucial to note new slaughter.” While this statement explanato- conclusory, not this remark was judge’s assessment of the articulates nothing This tells ry, in nature. comment offense, as with his initial seriousness of progress to which Houston’s of the extent statement, indication that con- gives little fashioning his significant was deemed criteria sideration was indicate does it way and in no imposed. before sentence was *8 recognition judge’s the of the Cha- light in progress was evaluated by statement was followed the This brief Judge Buckalew criteria.1 conclusory ney indication that Chaney light is of criteria in of the 1. The lack of indication that Houston’s considered progress during four-year particular importance, since the the interval between sentencing resentencing expressly an sentencing in was has determined his initial and his 1032 sentencing goals appropriately basic were
I have set out in detail commented upon sentencing sentencing the trial court’s remarks in considered. It is for the court to I priority relationship this case not to what cоnsider to establish the belabor goals, particular be their but rather to illustrate these based on the circum- inadequacy, State, point. acknowledges stances Asitonia v. majority of each case. 1023, explana- (Alaska 1973). these remarks “the full P.2d appeal, constitute On sentencing judge.” reviewing court, by independent tion an by the On record, reading the basis of the must ascertain that majority of these remarks sentencing judge, priority given Chaney goals by concludes that even the to though specifically sentencing clearly he did not mention the court was not mis- State, 811, Chaney sentencing goals, complied with the taken. v. 519 P.2d 813- McClain requirement State, (Alaska 1974). v. 574 P.2d Evans 26, making fact that all Chaney clear the Thus, duty court’s of deter- appellate goals Yet, were as I actually considered. mining sentencing prop- whether the above, except cursоry indicated for the erly Chaney sentencing goals considered the probation, reference to the benefits weight and whether proper allocated to judge’s sentencing explanation was utterly goals primary importance the various is of indication, explicit devoid of either in a Yet it is appeal. virtually sentence implicit, Chaney goals were con- impossible, by when confronted a record I sidered. believe that Accordingly, sentencing as to the utterly silent majority’s significance decision ascribes a to imposing court’s reasons for to the superior sentencing explanation make a realistic as to wheth- determination simply that is unwarranted. clearly er the mistaken. lower court was See, State,
My disagreement
e.g.,
(Alas-
this case is not limit-
v.
in
Soroka
ed to
majority
1979);
the conclusion that the
has
ka
Andrews
misread
sentencing
(Alaska 1976).
ample
remarks of the su- 154
an
Without
dis-
perior court,
signifi-
sentencing
too much
cussion
court’s reasons
giving them
of the
cance.
Chaney imposes upon
imposing
reviewing
State v.
court has
determining
courts the
the five
no
whether
duty to consider
basic
basis for
the sen-
mistaken, and,
sentencing goals
imposing
according-
in the course of
tence was clearly
requires
ly,
sentence.
an
will
to state with
Chaney
appel-
position
also
never be
court,
late
not
reviewing
sentencing
deci-
assurance that a sentence was
sion
court,
of a trial
to ascertain that
mistaken.2
fully thought
through
adequately
offender whose crime was committed a sub-
prior
imposition.
stantial
time
date of
sidered
No such assur-
before its
court,
sentencing,
sentencing
applica-
sentencing
its
ance exists where
remarks are cur-
criteria,
Chaney
tion of
nature,
must consider
sory
affording virtually
insight
no
progress
offender’s
his status at the time
thought processes
sentencing judge.
Application
imposed.
the sentence is
cases,
explanation may
In
of an
such
the lack
as he
criteria to the offender
was at the
nothing
coming
means to
be
more than a
avoid
time of
such
the crime in
circumstances
grips
particularly
difficult
inappropriate.
Padie
problems.
(Alaska 1979).
62-63
The lack of a full
here leaves this
interpretation.
possi-
open
case
to such an
2. Cf. Johnson v.
imposed
bility that
the sentence
was not care-
(Alaska App.1981) (trial court’s failure to make
fully
precluded.
reasoned
cannot
adequate findings
impinges
the defend-
remarks in
of the deficient
right
Beyond
appeal).
furnishing
ant’s
case,
majority’s
disagree
review,
with the
view
inadequate
appellate
the ex-
basis for
rеsentencing
in this case would be a futile
brevity
sentencing judge’s
treme
re-
gesture.
possibility
Given the distinct
gives
marks in this case
rise to a substantial
carefully
question
judge gave
and dis-
sentence was
full and
whether
passionately
thought out
rational
to Houston’s
consideration
court,
ample explanation
imposed.
understand how the ma-
before it was
An
difficult to
predict.
jority
confidently
of the sentence
can
that Houston
would,
fact,
provides
if
the sentence
be destined
the same fate
assurance that
was care-
*9
fashion,
the
In
this situation exists in
sentences in a
without
my opinion,
summary
present
comment,
con-
cursory
highly
explanation
case.
secure in the
clusory
Judge
knowledge
Buckalew
by
remarks made
their sentences would be
preclude
adequate
ap-
appellate
an
determination on
the
courts
upheld because
would
peal, as mandated McClain v.
as to
find no
an
improp-
affirmative indication of
was
imposed
goals.
whether the sentence
below
er
the Chaney
consideration of
clearly mistaken.
sentencing
If the
of the superior
remarks
opinion
present
sufficient,
in
case
majority
the
court in
were
it would
this case
manages
task,
avoid
problem by
simple
appeal,
to
reliance be a
on
to
relatively
that,
view,
on a standard of
in
my
apply
review
in
the standard enunciated McClain v.
ignores
requirements
the
of
Asito-
whether
sen-
Chaney,
State
to determine
the
nia,
in
majority opinion,
imposed
and McClain. The
tence
mistaken.
be-
was
sentence,
affirming
states:
lieve that
the trial court’s
it is
because
explanation of its sentence was so manifest-
are unable to conclude that the sen-
[W]e
opinion
ly inadequate
majority
has
improper
tence
reflects
consider-
reasoning
in
tak-
had to seek recourse
isolation,
ation or balancing of
deter-
conclusion,
abrogate
en to its
would
logical
rence,
of community
and affirmation
explanation
any sentencing
the need for
norms.
whatsoever.
Thus, majority’s
affirmance
not
is based
upon
It is
that full
undisputed
the conclusion that
to
ra-
decision contributes
properly balanced the relevant Cha-
the re-
goals,
tionality
facilitates
ney
but rather on a determination
viewing
of the correct-
court’s evaluation
majority
to
say
is unable
public
ness of
and fosters
Chaney goals were
properly
balanced.
justice system.
fidence
the criminal
An
In
view this holding signifies a radical
can
ample explanation
also assist correction
departure from
sen-
established norms of
dealing
authorities in
with an offender and
review,
tence
majority’s
for
implicit
value
helping
the de-
therapeutic
reasoning is the
conclusion
a sentence
without bitter-
accept
fendant
sentence
upheld
will always
appeal
on
unless the
n.2;
Alpiak
ness.
P.2d at 665
record contains an affirmative indication
418;
Perrin v.
State v.
reasoning
court’s
Here, I
Chaney,
crime original importance goals sentence in an the relative of those adjusting Houston’s particular circumstances of the impossible almost mechanical fashion. It is case, appel- imposed upon then the task sentencing judge to tell which factors the merely late court becomes more than bur- thought pointed lengthy imprison- toward densome; it becomes unrealistic. ment, weight what the various factors re- ceived, or what was considered in exactly reasons, agree For the I cannot foregoing shaping the Where the sentenc- sentence. majority’s with the decision to affirm Hous- ing explanation is sparse, difficulty ton’s sentence. While I would not now hold appellate greatly informed review is in- excessive, the sentence was I do not Beyond deprived creased. of a suffi- being that a this is- believe reasoned decision on determining cient basis for whether the de- sue can adequate be made without an cision of the tencing explanation by superior court— mistaken, reviewing court cannot be an explanation reflecting appropriate certain that impermissible considerations sideration and of all of the application Cha- did not fashioning enter into the the infor- ney sentencing goals light of Where, here, sentence. the remarks of at the time of mation available the cоurt the sentencing sparse court were so Thus, I. sentencing.3 would order the sen- deprive the appellate court of assurance the superior tence vacated and remand to all requi- resentencing upon considered court for based a thor- not, juncture, possible psychological problems underlying 3. While I would at this rule out possibility reasons, the 3 that a origi- with it. For these nally when Houston was suspended present would be warranted in the sentenced, the trial court’s recommenda- case, I believe that at least one facet of Hous- psychiatric tions for alcohol rehabilitation and therapy requires ton’s sentence When Houston’s sentence was posed, additional comment. justified appropriate were meas- im- See, State, e.g., ures. Notaro v. psy- the tried court recommended both State, (Alaska 1980); Good v. 590 P.2d therapy. chiatric treatment and alcohol years Four (Alaska 1979). later, resentencing, apparent it was While the for alcohol reha- recommendation provided that Houston had been with neither psychiatric counseling may bilitation and psychiatric therapy nor alcohol rehabilitation. appropriate been realistic measures when present particularly The record in the case is originally imposed, Houston’s sentence was establishing clear in that the crime which later, resentencing, four product Houston was convicted was the of a it was evident that the court’s recom- problem part, severe alcohol on Houston’s gone Contrary mendations had unheeded. possible psychological underlying difficulties implication majority opinion, nothing Although precise the in the record indicates a “difference of the alcohol abuse. vation for Houston’s actions moti- clear, opinion” not be manifest, the direct link to alcohol abuse is between the court and the Division of Correc- regard majority wrong terming in this his crime an therapy. tions as to the defendant’s need for “unexplained homicide.” This is only logical inference I can draw from the not a case in which an offender has received record is that the court’s initial recommenda- prior rehabilitation, opportunities for but failed. simply ignored. majority opin- tion was As the See, e.g., Tritt v. 625 P.2d 889 n.10 out, points ion there is no assurance that Hous- App.1981); Wire v. danger ton does not still constitute a (Alaska App.1980). contrary, 19 n.3 To the However, community. reason for this is case, present the tive and matter of response Houston had taken the initia- psychiatric the total lack of alcohol or treat- sought help only for his alcoholism by the Division of ment afforded to Houston days before this offense occurred. four-year period. 'Whiletri- Corrections over efforts, to his Houston received generally provide al courts must for rehabilita- assistance, having minimal over a and released without been “dried out” through tion of recommendations, the use of offenders two-day period hospital at the Air Force while, ordinary under provision further circumstances, appro- it must be assumed that counselling, therapy, or other Un- assistance. priate recommendations of circumstances, rapid der these re- heeded, judicial will be intervention and the pattern turn to his well-established ism was all but a of alcohol- stringent judicial control over exercise more foregone conclusion. It is necessary when there rehabilitation becomes undisputed in this case that Houston’s crime failure the Division has been a demonstrated abuse, directly resulted from his alcohol provide course danger of Corrections to poses to the extent that society, of treatment. LaBarbera v. virtue of his alcoholism and and discussion of ough consideration goals. *11 HAWLEY,
Timothy Appellant, Alaska, Appellee. of
STATE
No. 5608. Alaska. Appeals
Court of of 6,
Aug. 1982. community, protection 1979); (Alaska and rehabilitation Abraham itself, will, 1978). lengthy (Alaska in and of accom- AS a sentence See also P.2d 35(b). nothing plish unless Houston’s alcohol or and Alaska R.Crim.P. little 12.55.088 problems realistically case, psychological present despite psy- ad- are In the the lack of and therapy, dressed. rehabilitation or chiatric alcohol me, sentencing prisoner failure even to To had a model over Houston period been original for treat- years’ is recommendations four What renew its of inсarceration. that, inadequa- yet particularly although indication of the perplexing ment is another applicable sentencing cy of made the consideration tencing imposing new sen- Houston’s for treatment and criteria Contrary recommendations rehabilitation, Houston’s suggestion upon resentencing, in the ma- it was tence. apparent original jority opinion, of had I do not think that the lack that its recommendations unheeded, gone taking stronger any can be viewed as mere instead of recommendation Rather, “oversight.” assuring I think the omission rehabili- measures aimed at that, tation, Judge sentencing utterly symptomatic. I convinced had no am court —with express the time to a sentence Buckalew taken whatsoever — sentencing original and in a careful thor- failed even to its recom- for ough Houston renew manner, neglected he not have The failure of the would mendations for treatment. Houston’s need for alcohol need for issue of court to address Houston’s address the counseling. psychiatric counselling psychiatric therapy is a and rehabilitation alcohol stand, emphasize paradox. Regardless length I As now would matters virtual 35(b) receives, provisions he that the of Alaska R.Crim.P. it is certain that sentence modify eventually prison permit sen court to will be released from imprison society. during reintegrated a term of re- time If Houston is tence “at into problems if conditions or circumstanc ment it finds that leased without tragic that caused changed original resulting since the loss of in his conviction es have life addressed, original hearing purposes having realistically pre- been such Fermoyle being pose poten- See (Alaska App. fulfilled.” that he will much of a sentence are dictable as danger imprisoned. as did and Joe v. tial he when first why provisions 1982). recently I see no reason have stated: applicable to Houston’s not be is a for this rule would case, There need to address courts problem urge court to I would in serious alcohol-related violence give modification consideration well as less are serious serious cases. Courts beyond encouraged in order to assure to look of Houston’s alternatives underlying problem ordinary probation for his psychological abuse of incarceration and alcohol difficulties which creative solutions to the difficult rehabilita- integral part problems alcohol-abusing of his sentence posed tive are treated as Clearly, in realistic manner. offender. treatment, Ahwinona, past meas more decisive State v. n.4 appar a mere reinstatement pp.1 particularly are than A ures called believe it treatment. recommendation in this of Houston’s ent case terms