657 P.2d 859 | Alaska Ct. App. | 1983
OPINION
Whitmore entered a guilty plea to one count of escape in the second degree in violation of AS 11.56.310(a)(1)(A). Judge Seaborn J. Buckalew sentenced Whitmore to a four-year term of imprisonment. Judge Buckalew made this sentence consecutive to a previously imposed three-year sentence for burglary. Whitmore appeals, contending the trial court made several errors in imposing his sentence. We affirm.
Whitmore first argues that the trial judge erred in permitting the state to use his burglary conviction to prove an element of his offense — that he was under “official detention” — and to enhance his sentence by permitting him to be sentenced as a second felony offender. See AS 12.55.155(e). We have decided this issue adversely to Whitmore in Bell v. State, 658 P.2d 787 (1983).
Whitmore next argues that the trial judge erred in not finding that he had established a mitigating factor, that he “committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but which significantly affected his conduct....” AS 12.55.155(d)(3). Whit-more testified that another Eagle River Correctional Center inmate had frequently made homosexual advances toward him, and he felt threatened by these advances. He said he reported this problem to the guards, but no action was taken. There
Whitmore contends that Judge Buckalew erred by applying too high a standard when he concluded Whitmore had not established duress as a mitigating factor. Whitmore claims Judge Buckalew applied a standard which would have required him to prove that he had no alternative but to escape. See Bell v. State, 658 P.2d 787 (Alaska App.1983). We have reviewed the record and conclude that Judge Buckalew did not apply too high a standard in deciding that Whitmore had not acted under duress. Judge Buckalew did not decide that Whitmore had not established that he had no alternative but to escape. Rather, he concluded that Whit-more had not established that he was under any more pressure to escape than the average inmate. This conclusion is supported by substantial evidence. For instance, Whitmore admitted that although he had been sexually harassed, no physical force had been used against him. Whitmore also testified that he knew of no rapes which had taken place in the facility. The record also supports Judge Buckalew’s conclusion that a certain amount of hostile interaction between inmates would occur in jail and that Whitmore’s problems were not out of the ordinary. We conclude that Judge Buckalew did not err when he failed to find that Whitmore acted under duress.
Whitmore next argues that Judge Bucka-lew erred in imposing a consecutive sentence without making specific findings justifying the imposition of the consecutive sentence. Lacquement v. State, 644 P.2d 856, 862 (Alaska App.1982). In Lacquement we held that where consecutive sentences result in an aggregate term that exceeds the presumptive term for a single count, the trial court should make an affirmative finding that the aggregate term is necessary to protect the public from serious danger. See Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
The state distinguishes Lacquement, since the defendant in that case was given consecutive sentences for contemporaneous, previously unsentenced crimes. We agree that Lacquement offers no support for Whitmore’s assertion. That case relied heavily upon Mutschler, which held that where consecutive sentences result in an aggregate sentence which exceeds the maximum sentence for a single count, the trial court must affirmatively find that the aggregate term was necessary to protect the public. In arriving at that holding, the court in Mutschler relied upon section 3.4(b)(iv) of the American Bar Association Standards Relating to Sentencing Alternatives and Procedures (Approved Draft 1968),
Whitmore also claims that his four-year consecutive sentence was excessive. We disagree. Whitmore had an extensive juvenile record. He escaped shortly after being sentenced on his burglary conviction. The record reflects that Whitmore was the instigator of the escape. Whitmore’s attitude and conduct while he was incarcerated were poor. His attitude at his sentencing was also very poor. Given these negative factors and the need to deter others from escaping, we conclude that Judge Buckalew was not clearly mistaken in imposing the four-year consecutive sentence. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The sentence is AFFIRMED.
. The applicable standard is currently set forth in 3 ABA Standards for Criminal Justice § 18-4.5(b)(iv) (2d ed. 1980).