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Collins v. State (11/2/2012) ap-2380

Collins v. State (11/2/2012) ap-2380

                                                NOTICE 

        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.     Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts: 



                               303 K Street, Anchorage, Alaska  99501
 

                                          Fax:   (907) 264-0878
 

                          E-mail:   corrections @ appellate.courts.state.ak.us
 



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



YAKO WILLIAM COLLINS,                            ) 

                                                 )           Court of Appeals No. A-10655 

                            Appellant,           )           Trial Court No. 3PA-08-803 CR 

                                                 ) 

             v.                                  )                    O P I N I O N 

                                                 ) 

STATE OF ALASKA,                                 ) 

                                                 ) 

                            Appellee.            )          No. 2380    -    November 2, 2012 

                                                 ) 



                Appeal from the Superior Court, Third Judicial District, Palmer, 

                Eric Smith, Judge. 



                Appearances:       John   C.   Pharr,   Law   Offices   of   John   C.   Pharr, 

                Anchorage,   for   the   Appellant.    Eric   A.   Ringsmuth,   Assistant 

                Attorney General, Office of Special Prosecutions and Appeals, 

                Anchorage, and John J. Burns, Attorney General, Juneau, for the 

                Appellee.    Marjorie K. Allard, Assistant Public Defender, and 

                 Quinlan Steiner, Public Defender, Anchorage, for the Appellant, 

                 as amicus curiae. 



                Before:     Coats,    Chief   Judge,   and   Mannheimer      and   Bolger, 

                Judges. 



                 COATS,     Chief Judge. 

                BOLGER, Judge, dissenting. 


----------------------- Page 2-----------------------

              Yako William "Billy" Collins was convicted of sexual assault in the first 

degree.1   Superior Court Judge Eric Smith sentenced Collins to twenty-five years of 



imprisonment with five years suspended.        Collins appeals his conviction and sentence. 



We affirm Collins's conviction, but remand his case to the superior court to reconsider 



whether Collins's case should be referred to the three-judge panel for sentencing. 



       Factual and procedural background 



               The victim in this case, J.H., lived with her parents and her sister in Wasilla. 



Collins was the boyfriend of J.H.'s sister, and he also lived with the family.  Collins and 



J.H.'s sister shared an apartment over the garage. 



               On the evening of March 12, 2008, the family was hosting a bonfire and 



barbeque.   J.H. and her boyfriend, accompanied by J.H.'s sister and Collins, spent the 



evening drinking in the apartment over the garage.       At some point, Collins and J.H.'s 



sister left the apartment, and J.H. had sex with her boyfriend.      J.H. and her boyfriend 



then went to J.H.'s room inside the main house. 



               Sometime after midnight, either Collins or J.H.'s father asked the boyfriend 



to leave J.H.'s room, and he complied.      J.H. then went to sleep.    Sometime later, J.H. 



awoke to find Collins lying on top of her, having sexual intercourse with her.            J.H. 



testified that she had not consented to have sex with him that night. J.H. testified that she 



tried to push Collins off her, and told him that what he was doing was wrong and that he 



needed to stop.   Despite J.H.'s protests, Collins continued to have sex with J.H. 



               Collins stopped when he heard J.H.'s sister approaching the bedroom.  He 



told J.H.'s sister that he and J.H. had just been talking.   J.H. did not contradict Collins 



       1   AS 11.41.410(a)(1). 



                                            - 2 -                                         2380 


----------------------- Page 3-----------------------

or immediately report the sexual assault because she wanted to "forget it ever happened." 



However, she told her boyfriend the next day that Collins had sexually assaulted her. 



                Later that day, J.H.'s father received a text message from J.H.'s sister, 



informing him that Collins had had sex with J.H.              When J.H.'s father confronted her 



about this text message, she began to cry.   She told her father that Collins had raped her. 



J.H. told her father that she had not said anything earlier because she was afraid no one 



would believe her. 



                J.H.'s father called the police.      Following an investigation, a grand jury 



indicted Collins for first- and second-degree sexual assault. 



                Collins   did   not testify   at his   trial or   present any   other   witnesses.   He 



contended that the State's evidence supported a reasonable conclusion that J.H. had 



consensual sex with him, and that she later falsely claimed that she was raped because 



she was afraid of her father. 



                The jury convicted Collins of first-degree sexual assault (and acquitted him 



of second-degree sexual assault).   Superior Court Judge Eric Smith sentenced Collins to 



twenty-five years with five years suspended - twenty years to serve. 



        Judge Smith did not commit plain error by limiting   evidence related to 

        J.H.'s sex with her boyfriend earlier in the evening of the assault 



                Collins argues that Judge Smith erred by limiting the evidence he could 



introduce on the subject of J.H.'s sexual intercourse with her boyfriend on the night of 



the sexual assault. 



                After the sexual assault was reported to the police, J.H. was examined by 



a sexual assault nurse examiner, Astin Mills.  J.H. told Mills that she had been sexually 



                                                 - 3 -                                            2380
 


----------------------- Page 4-----------------------

assaulted.    She also told Mills that she had consensual sex with her boyfriend earlier in 



the evening.     Mills observed substantial injuries to J.H.'s genital area. 



                 In a pre-trial motion, Collins sought to admit the evidence that                  J.H. had 



intercourse with her boyfriend on the evening of the assault, arguing that the evidence 



was relevant to provide an alternative explanation for J.H.'s injuries.  Collins indicated 



that he might want to call the boyfriend as a witness.  The State did not oppose admitting 



the   evidence   to   provide   an   alternative   explanation   for   J.H.'s   injuries.   But   the   State 



contended that the identity and age of J.H.'s boyfriend were not relevant. 



                 Judge   Smith   ruled   that   Collins   could   introduce   evidence   that   J.H.   had 



sexual intercourse with her boyfriend through the testimony of J.H.                    He also ruled that 



if Collins established that the identity of J.H.'s boyfriend was relevant, or that he needed 



to introduce more on this subject than J.H.'s testimony, he could make an application to 



the court to introduce additional evidence. 



                 During the trial, J.H. testified that earlier in the evening, before the sexual 



assault, she had sex with her boyfriend.  In addition, the jury heard a recording in which 



J.H. told Nurse Mills she had sex that evening with her boyfriend "Nick." 



                 On appeal, Collins argues that Judge Smith erred in not allowing him to 



introduce additional evidence on J.H.'s prior sexual activity with her boyfriend.  He 



argues that his attorney told the court he wanted to call the boyfriend as a witness.  But, 



as just explained, Collins's attorney only stated that he might want to call the boyfriend 



as   a   witness.  Moreover,   Judge   Smith   invited   Collins   to   revisit   the   issue   after   J.H. 



testified if he wished to introduce more evidence on the subject, but Collins never asked 



for any further relief.     Collins must therefore show plain error. 



                 We   conclude   that Judge   Smith   did   not abuse   his   discretion, much   less 



commit plain error, by limiting the evidence Collins could introduce on the subject of 



                                                    - 4 -                                               2380
 


----------------------- Page 5-----------------------

J.H.'s   sexual  intercourse   with  her  boyfriend.    Collins   never  asked   to  call  J.H.'s 



boyfriend, and he made no offer of proof establishing that the boyfriend's testimony 



would have benefitted his case.   Nor does it appear that Collins preserved his objection 



to the court's decision to exclude evidence of the boyfriend's last name and age.  In any 



event, this information does not appear to have been particularly probative. 



        Collins has not shown that Judge Smith abused his discretion by limiting 

       evidence of J.H.'s father's alleged history of violence 



               Collins's defense at trial was that J.H. falsely claimed Collins raped her 



because she was afraid of how her father might react if she admitted she had consensual 



sex with Collins.  Collins conceded that there was no evidence that J.H.'s father had ever 



been violent with J.H., but he sought to introduce evidence that J.H. was aware of her 



father's history of violence against others. 



               To resolve this issue, Judge Smith allowed the parties to question J.H. 



outside the presence of the jury.  During this questioning, J.H. testified that her father had 



never been violent toward her.  She testified that, although she had seen her father argue 



with his former girlfriends, she had never seen those arguments escalate into physical 



violence. 



               Based on this testimony, Judge Smith ruled that Collins could ask J.H. if 



she was afraid of her father.   But he ruled that J.H.'s testimony that she had observed her 



father argue with former girlfriends was not relevant. 



               When the trial resumed, J.H. testified that she was not afraid of her father. 



She testified that she had not wanted her father to know about the rape because she 



simply did not want to deal with all the consequences of reporting a rape. 



                                             - 5 -                                        2380
 


----------------------- Page 6-----------------------

                 On   appeal,   Collins   argues   that   Judge   Smith   unduly   restricted   his   cross 



examination of J.H. about her father's history of violence, and that he should have been 



able to present "the full panoply of evidence" regarding the father's assaultive history. 



But Collins never offered any evidence that J.H.'s father had a history of violence, much 



less that J.H. was aware of this history.  The only evidence on this issue was that J.H. had 



seen   her   father   argue   with   former   girlfriends.    J.H.   did   not   indicate   that   there   was 



anything about this behavior that made her fearful of her father.  We conclude that Judge 



Smith did not abuse his discretion by limiting this evidence. 



         Why we remand Collins's case for resentencing 



                 In 2006, the legislature amended the sentencing statutes to sharply increase 



the sentencing ranges for sexual offenders.  Under this revision, Collins, as a first time 



felony offender convicted of first-degree sexual assault, was subject to a sentencing 



range of twenty to thirty years.         He was ultimately sentenced at the lower end of that 



range to twenty years to serve.  If Collins had committed his offense before this change 



in the law, he would have faced a sentencing range of eight to twelve years. 



                 Collins was twenty years old when he committed the offense.                   He had no 



juvenile record, and a limited adult record.  At age nineteen, he was convicted of fourth- 



degree   theft   and   fined   fifty   dollars. And   while   on   bail   release   in   this   case,   he   was 



convicted of providing false information to the police, and sentenced to ninety days in 



jail. (Collins's bail condition required him to abstain from alcohol. He consumed alcohol 



while on bail release and, when contacted by the police, gave a false name because he 



knew he was in violation of his bail conditions.) 



                 When an offense is subject to a presumptive range of imprisonment and no 



statutory mitigating factor has been   proven, a sentencing judge has no discretion to 



                                                   - 6 -                                               2380
 


----------------------- Page 7-----------------------

                                                                              2 

impose a sentence below the low end of the presumptive range.   In these circumstances, 



the defendant can only obtain a lesser sentence by persuading the judge that he is entitled 

to referral to the three-judge sentencing panel.3            Collins asked Judge Smith to send his 



case to the three-judge panel because he had "extraordinary potential for rehabilitation" 



and because manifest injustice would result from a sentence within the presumptive 



range.  In support of this argument, Collins submitted letters vouching for his character, 



including strong letters of support from both the victim and her mother. 



                 Judge Smith decided not to refer the case to the three-judge panel.  He 



reasoned that, although "there are a lot of ... instinctual reasons for believing [Collins 



was] unlikely to commit this kind of crime again," he did not have sufficient information 



to reach this conclusion.        He pointed out that Collins had not provided the court with a 



sex offender assessment or a substance abuse evaluation.  He concluded that, in spite of 



Collins's youth and good reputation, and the letters of support he received from J.H. and 



others, his case was not sufficiently exceptional to justify referral to the three-judge 



panel. 



                                                    4 

                 Recently, in Luckart v. State ,  we considered the sentence appeal of another 



young first felony offender convicted of attempted sexual assault in the first degree, as 



well as several other crimes.   In that case, the superior court had concluded that it would 



be manifestly unjust to sentence Luckart within the presumptive range of twenty-five to 



thirty-five   years   to   serve   given   his   youth,   his   lack   of   an   adult   criminal   record,   his 



        2    Smith v. State, 711 P.2d 561, 567 (Alaska App. 1985); Heathcock v. State , 670 



P.2d 1155, 1156-57 (Alaska App. 1983). 



        3    AS 12.55.165(a). 



        4    270 P.3d 816 (Alaska App. 2012). 



                                                    - 7 -                                               2380
 


----------------------- Page 8-----------------------

cooperation with the police, and his apparent remorse.5                The three-judge panel agreed 



that a sentence within the presumptive range would be manifestly unjust.6                   But the panel 



erroneously concluded, based on a misreading of the governing statute, that it had no 



authority to impose a sentence below the presumptive range because it had not found that 

Luckart had extraordinary potential for rehabilitation.7               We remanded the case to the 



three-judge      panel,   holding     that  once    the  panel    ruled   that  a  sentence     within   the 



presumptive range was manifestly unjust, it was required to impose a sentence below the 

presumptive term.8 



                 Luckart, like Collins, was sentenced   under the presumptive   sentencing 



ranges enacted by the legislature in 2006.              In his concurring opinion in Luckart , the 



present author recommended that the three-judge panel consider the legislative history 



of the 2006 revisions to the sentencing ranges in determining the appropriate sentence 



for Luckart pointing out that the legislature had based those sentencing ranges on certain 

assumptions about typical sex offenders that might not apply in Luckart's case.9 



                 When   we   reviewed   Judge   Smith's   decision   in   this   case,   we   again   had 



occasion to examine the legislative history of the presumptive sentencing ranges for sex 



offenders.      That legislative history makes clear that the current sentencing ranges are 



based on legislative findings that the typical sex offender is a repeat offender with very 



        5   Id. at 818. 



        6   Id. 



        7   Id. at 819. 



        8   Id. at 820. 



        9   Id. at 822-23. 



                                                   - 8 -                                               2380
 


----------------------- Page 9-----------------------

poor prospects for rehabilitation. 10          Because it was not obvious from the sentencing 



record that these legislative assumptions applied to Collins, we asked the parties and 



amicus curiae to submit supplemental briefing addressing whether sentencing judges 



should take account of these legislative assumptions in deciding whether referral to the 



three-judge      panel    is  warranted     in   a  particular    sex   offense    prosecution.      Having 



considered that briefing and argument, we conclude that the answer is yes. 



                 The legislature addressed the purposes and rationale behind its revisions to 

the sentencing ranges for sex offenses in a detailed letter of intent.11                   The legislature 



explained   that   it   had   increased   the   presumptive   sentencing   ranges   for   sex   offenses 



because   they   are   serious   crimes   that   are   prevalent   in   Alaska   and   have   far-reaching 

negative impacts on victims, victims' families, and society.12                  But the legislature also 



declared   that   it   had   increased   the   sentencing   ranges   based   on   its   findings   that   sex 



offenders usually have committed multiple sex offenses by the time they are caught, that 



they often do not respond to rehabilitative treatment, and that they therefore cannot be 

safely released into society.13 



                 The legislature also explicitly recognized that there would be cases in which 

a sentence within the presumptive range would be manifestly unjust.14                      The legislature 



anticipated that sentencing judges would provide a necessary safety valve to prevent 



         10  2006 Senate Journal 2207-14 (February 16). 



         11  Id.
 



         12  Id. at 2210-11.
 



         13  Id. at 2209-12.
 



         14  Id. at 2212.
 



                                                    - 9 -                                                2380
 


----------------------- Page 10-----------------------

unfairness in particular cases by imposing a sentence below the presumptive range based 

on statutory mitigating factors or by referring the case to the three-judge panel.15 



                 Given     this  legislative    history,   and   given    the  legislative    assumptions 



underlying the increased presumptive sentencing ranges enacted in 2006, we conclude 



that defendants convicted of sex offenses - particularly, young defendants with no 



significant   criminal   record   -   should   be   able   to   obtain   referrals   to   the   three-judge 



sentencing panel if they can show that these assumptions do not apply to them. 

                 As this Court explained in Knight v. State ,16 the presumptive sentencing 



range for any given class of criminal case represents the legislature's assessment of "the 



appropriate sentence for typical cases in that class," which we assumed to be "[the] 

relatively   broad   category   into   which   most   cases   will   fall." 17  We   explained   that   the 



aggravating and mitigating factors codified in AS 12.55.155(c) - (d) helped to identify 



the "relatively narrow circumstances that tend to make a given case atypical and place 

it outside the relatively broad presumptive middle ground."18 



                 In other words, our prior decisions dealing with presumptive sentencing, 



and with referrals to the three-judge panel, are premised on an underlying assumption 



about the presumptive sentencing ranges codified in AS 12.55.125:   the assumption that 



the   legislature   intended   for   these   presumptive   ranges   to   quantify,   in   the   absence   of 



evidence to the contrary, the sentences that should be imposed on defendants who had 



         15 Id. 



         16  855 P.2d 1347 (Alaska App. 1993). 



         17 Id. at 1349. 



         18 Id . (quoted with approval by the Alaska Supreme Court in State v. Parker, 147 



P.3d 690, 695 (Alaska 2006)); see also Smith v. State, 258 P.3d 913, 920-21 (Alaska App. 

2011). 



                                                  -  10 -                                              2380
 


----------------------- Page 11-----------------------

committed a typical offense within the statutory definition of the crime, and who had 



typical prospects for rehabilitation. 



                 Based on the structure and content of the presumptive sentencing statutes, 



we can reasonably add one further assumption:  that the defendant's criminal history is 



adequately reflected by the defendant's status as a first, second, or third felony offender. 



                 The    legislature    has  enacted    several    aggravating     factors   that  apply    to 



defendants whose criminal history is materially worse than one would normally suppose 



from the defendant's classification as a first, second, or third felony offender.                 There is 

a statutory aggravator for defendants with a prior history of assault,19 for defendants with 



a prior history of similar offenses,20 for defendants with a prior history of more serious 



offenses,21    and   for   defendants   who   have   a   greater   number   of   prior   offenses   than   is 



reflected in the defendant's categorization as a first, second, or third felony offender.22 



                 These aggravating factors, if proved, allow the sentencing judge to exceed 



the presumptive sentencing ranges that would otherwise apply.   It therefore follows that 



the legislature viewed these defendants as "atypical" in the sense that they should not 



presumptively receive a sentence within the normal sentencing range.  Rather, when one 



or more of these aggravators are proved, a defendant's case no longer falls within "[the] 



         19  AS 12.55.155(c)(8). 



        20   AS 12.55.155(c)(21). 



        21   AS 12.55.155(c)(7). 



        22   AS 12.55.155(c)(15) and (c)(31). 



                                                   -  11 -                                             2380
 


----------------------- Page 12-----------------------

relatively broad [middle] category" of defendants who are typically dangerous, and who 

have typical prospects for rehabilitation.23 



                But these assumptions about the presumptive sentencing ranges, and about 



which defendants should be subjected to these presumptive ranges, do not apply to the 



presumptive sentencing ranges established by the legislature for sex offenses. 



                As can be seen from the legislative history, the legislature enacted those 



presumptive sentencing ranges based on the assumption that defendants being sentenced 



for sex offenses have likely committed many other sex offenses before they were caught, 



and on the further assumption that the defendants being sentenced for sex offenses are 

particularly resistant to rehabilitative efforts.24     In other words, these presumptive ranges 



for sex offenders were designed for defendants who, by normal standards, are atypically 



dangerous, and who have atypically poor prospects for rehabilitation. 



                Accordingly, we conclude that a defendant's case should be referred to the 



three-judge sentencing panel, for consideration of sentences outside the presumptive 



range, if the defendant shows, by clear and convincing evidence, that the legislature's 



assumptions do not apply to him - either that the defendant does not have a history of 



unprosecuted   sexual   offenses,   or   that   the   defendant   has   prospects   for   rehabilitation 



which, in other offenders, would be considered "normal" (or "good").   If the defendant 



can prove either or both of these things, then the defendant's case should be referred to 



the three-judge panel because the legislature designed the presumptive ranges for sex 



offenders with significantly different characteristics. In such cases, the three-judge panel 



should decide whether, given all the circumstances of the case, it would be manifestly 



        23  See Knight, 855 P.2d at 1349. 



        24  2006 Senate Journal 2207-14 (February 16). 



                                                 - 12 -                                              2380 


----------------------- Page 13-----------------------

unjust   to   sentence   the   defendant   to   a   term   of   imprisonment   within   the   applicable 



presumptive range. 



                Now that we have clarified this area of the law, we must remand Collins's 



case to the superior court so that Judge Smith can reassess whether Collins's case should 



be referred to the three-judge panel. 



                We   must   address   one   further   aspect   of   Collins's   sentencing.      At   the 



sentencing hearing, Judge Smith rejected two statutory mitigating factors proposed by 



Collins - AS 12.55.155(d)(9) (conduct among the least serious within the definition of 



the offense) and (d)(12) (minor harm).   We have examined the record, and we conclude 



that it supports Judge Smith's rulings on these two mitigators. 



        Conclusion 



                We AFFIRM Collins's conviction, but we VACATE the superior court's 



denial of his request for referral to the three-judge sentencing panel.  The superior court 



must reevaluate its decision on this matter in conformity with this opinion. 



                (We do not retain jurisdiction of this case.) 



                                                 -  13 -                                           2380
 


----------------------- Page 14-----------------------

BOLGER, Judge, dissenting. 



                 By my reading, the lead opinion establishes two new mitigating factors 



based on the legislative history of the 2006 sentencing legislation - mitigating factors 



that apply only to sex offenses. In my opinion, these mitigating factors are not supported 



by this legislative history. 



                 The   first   factor   is   based   on   the   court's   conclusion   that   the   legislature 



believed   that   "the   typical   sexual   offender   is   a   repeat   offender."   This   conclusion   is 



apparently   based   on   legislative   findings   regarding   two   studies   reporting   polygraph 

interviews with convicted sex offenders.1              Based on this conclusion, the lead opinion 



establishes a mitigating factor that applies to any sex offender who does not have a prior 



history of sex offenses. 



                 I   do   not   agree   that   these   findings   warrant   a   new   mitigating   factor.  A 



sentencing   judge   generally   does   not   have   a   polygraph   interview   to   rely   on.      So   the 



problem   with   requiring   proof   of   unreported   offenses   is   that   the   offenses   cannot   be 



documented:        The legislature found that only sixteen percent of victims report a sexual 

assault2 and that only twenty-seven percent of reported sex crimes result in an arrest.3 



These unreported and unprosecuted offenses will be unavailable to the sentencing judge; 



we should not make this routine circumstance the basis for a mitigating factor. 



         1   2006   Senate   Journal   2209   (citing   Ahlmeyer,   Heil,   McKee   and   English,   "The 



Impact   of   Polygraph   on   Admissions   of   Crossover   Offending   Behavior   in   Adult   Sexual 

Offenses," Sexual Abuse:          A Journal of Research and Treatment, 12(2):               123-138, 2000; 

Wilcox and Sosnowski, "Polygraph Examination of British Sexual Offenders: A Pilot Study 

on Sexual History Disclosure Testing," Journal of Sexual Aggression, 11(1), 3-25: 2005). 



         2   2006 Senate Journal 2208 (citing Kilpatrick, Rape in America Report, 1992). 



         3   Id. (citing Snyder, 2000). 



                                                   -  14 -                                               2380
 


----------------------- Page 15-----------------------

                 In addition, this mitigating factor would be inconsistent with the statutory 



context outlined in the lead opinion.             The legislature did not change the aggravating 



factors that apply to these sex offenses.  If the prosecution can prove that an offender is 



guilty   of   previously   unreported   sex   offenses,   then   those   offenses   may   support   the 

aggravating   factors   for   a   prior   history   of   aggravated   assaultive   behavior4       or   a   prior 



history of similar offenses.5      This court has approved the application of these aggravating 



factors to sexual assault convictions on numerous occasions.6 



                 One could argue that the 2006 legislation impliedly repealed or amended 



these aggravating factors, but this approach would be unwarranted.  We should not infer 



an amendment of the aggravating factor statute because the enforcement of this statute 

does not raise any actual conflict with the 2006 legislation.7             We should presume that the 



legislature   was   aware   of   our   interpretation   of   this   statute   when   it   enacted   the   2006 



legislation. 



                 So   it   appears   to   me   that   the   presumptive   sentencing   ranges   that   were 



modified in the 2006 legislation remain subject to the aggravating factors that apply 



when the prosecution can prove a sex offender is guilty of previously unreported sex 



offenses.  As noted in the lead opinion, these aggravating factors are intended to identify 



         4   AS 12.55.155(c)(8). 



         5   AS 12.55.155(c)(21). 



         6   See,   e.g.,   Moore     v.  State,   174   P.3d    770   (Alaska     App.    2008)    (applying 



AS 12.55.155(c)(8) to convictions for attempted sexual assault); Tazruk v. State, 67 P.3d 687, 

689 (Alaska App. 2003) (applying AS 12.55.155(c)(21) to a sexual assault conviction). 



         7   See Allen v. Alaska Oil & Gas Conservation Com'n , 147 P.3d 664, 668 (Alaska 



2006) (stating that a prior statute may be impliedly repealed if the enforcement of the statute 

is in irreconcilable conflict with later legislation). 



                                                   - 15 -                                                2380
 


----------------------- Page 16-----------------------

circumstances that tend to make a case atypically aggravated.8             If the prosecution cannot 



prove     these   aggravating     factors,   then   the  sentence     properly    belongs    within    the 



presumptive   range;   the   absence   of   these   factors   does   not   make   the   case   atypically 



mitigated. 



                The second mitigating factor in the lead opinion is based on the court's 



conclusion that the legislature found that most sex offenders have "very poor prospects 



for   rehabilitation."    This    observation     is  apparently    based   on   legislative    findings 

regarding the ineffectiveness of institutional treatment programs.9             From these findings, 



the opinion reasons that it would be manifestly unjust to sentence a sex offender with 



normal     prospects    for   rehabilitation   to  a  sentence    within    the  normal    presumptive 



sentencing range.      I disagree. 



                According       to  the  legislative   findings,    a  sex  offender    with   moderate 



prospects for rehabilitation (and a correspondingly moderate risk of recidivism) may be 



unusual in the sense that he may have a better chance of rehabilitation than the usual sex 



offender.    But it does not follow that it would be manifestly unjust to sentence a sex 



offender with a moderate risk of recidivism to a sentence within the presumptive range. 



The legislature recognized that sex offenses can have a serious impact on the victim and 

society.10   So a sex offender who poses a moderate risk of recidivism may still pose an 



unacceptable danger to the community.  We should maintain the same standard for a sex 



offender     that  we   have    previously    established    for  other   defendants,     requiring    the 



        8   See Knight v. State, 855 P.2d 1347, 1349 (Alaska App. 1993). 



        9   2006   Senate   Journal   2208   (citing   Sex   Offender   Treatment   Evaluation   Project 



Report, January 2005). 



        10  See 2006 Senate Journal 2209, 2211. 



                                                 -  16 -                                            2380
 


----------------------- Page 17-----------------------

defendant to show particularly favorable prospects for rehabilitation in order to establish 

a non-statutory mitigating factor.11 



                 In the trial court, Collins argued that he had unusually favorable prospects 



for   rehabilitation,   but   the   sentencing   judge   found   that   Collins   had   not   proven   this 



mitigating factor.     Collins did not submit a psychological evaluation or a sex offender 



assessment   to     establish   how    he   could   be   supervised   in   the   community.      And     the 



sentencing judge found that Collins's conduct on pretrial release was not good - he 



became intoxicated and then lied about his identity when he was confronted by   the 



police. I conclude that the sentencing judge made a reasonable decision that Collins has 



not established any mitigating factors sufficient to warrant a referral to the three-judge 



panel. 



        11  See Smith v. State, 711 P.2d 561, 571-72 (Alaska App. 1985). 



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