Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Scholes v. State (4/13/2012) ap-2351

Scholes v. State (4/13/2012) ap-2351


        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 @



                                                          Court of Appeals No. A-10931 

                               Appellant,                Trial Court No. 1JU-08-1471 Cr 


                                                                  O  P  I N  I  O  N 


                               Appellee.                   No. 2351     -   April 13, 2012 

               Appeal from the Superior Court, First Judicial District, Juneau, 

               Philip M. Pallenberg, Judge. 

               Appearances:       David    M.  Seid,  Assistant   Public  Defender, 

               Juneau, and Quinlan Steiner, Public Defender, Anchorage, for 

               the   Appellant.     Angie   Kemp,    Assistant   District  Attorney, 

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


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


               MANNHEIMER, Judge. 

               Christopher Scholes kidnappeda15-year-old girlas she was walking along 

a path near a Juneau school.   Scholes came up behind the girl and placed her in a choke- 

hold until she lost consciousness.   When the girl regained consciousness and started to 

scream, Scholes threatened to kill her unless she remained quiet. Scholes then bound the 

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

girl with duct tape, carried her to his vehicle, drove her to his home, removed her 

clothing (by cutting it off with scissors), and proceeded to rape her repeatedly, both with 

his penis and with a bottle.   Following these sexual assaults, Scholes drove the girl back 

to the school and left her there, blindfolded. 

               Basedon this conduct,Scholeswasconvictedofkidnapping,second-degree 

sexual    abuse   of  a  minor,   and  a  single  count   of  first-degree   sexual  assault   that 

encompassed the various acts of sexual penetration that Scholes inflicted on the girl. 1 

For these crimes, Scholes received a composite sentence of 40 years and a day, all to 


               In this appeal, Scholes challenges various rulings that the superior court 

made in connection with his sentencing.           With respect to the sexual assault charge, 

Scholes argues that the sentencing court committed error by finding two aggravating 

factors:   deliberate cruelty, and conduct among the most serious within the definition of 

the offense.   Scholes also challenges the superior court's refusal to refer Scholes's case 

to the statewide three-judge sentencing panel (for imposition of a sentence outside the 

normal constraints of the presumptive sentencing law).   Finally, Scholes argues that his 

composite sentence is excessive. 

               For the reasons explained here, we uphold the superior court's rulings on 

these matters, and we further conclude that Scholes's sentence is not excessive. 

    1   See Yearty v. State, 805 P.2d 987, 995 (Alaska App. 1991) (holding that when a 

defendant inflicts distinct types of sexual penetration upon a victim during a single episode 

of sexual assault, each distinct type of sexual penetration will support a separate count of 

sexual assault). 

                                              - 2 -                                           2351 

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

        Aggravating factor AS 12.55.155(c)(2) - deliberate cruelty 

                Scholes   was   convicted   of   kidnapping,   first-degree   sexual   assault,   and 

second-degree   sexual   abuse   of   a   minor.     Kidnapping   is   not   covered   by   Alaska's 

presumptive sentencing law, 2      but Scholes's other two offenses are. 3 

               For cases where a defendant's sentencing is governed by the presumptive 

sentencing law, AS 12.55.155(c) contains the list of aggravating factors that, if proved, 

will authorize a judge to exceed the applicable presumptive sentencing range.                   See 

AS 12.55.155(a).       Aggravator (c)(2) applies to cases where "the defendant's conduct 

during the commission of the offense manifested deliberate cruelty to another person". 

We have interpreted this statutory language as referring to instances where the defendant 

inflicts pain (whether physical, psychological, or emotional) gratuitously or as an end in 

itself, as opposed to inflicting pain that is ancillary to the commission of the crime. 4 

               Thesuperior courtconcludedthatthisaggravator was proved by an incident 

that occurred during the sexual assault. While the girl was bound hand and foot, Scholes 

took a bottle of sparkling cider (a bottle approximately the size of a wine bottle) and 

inserted the neck of the bottle into his victim's vaginal canal.   The girl screamed in pain. 

Scholes asked the girl whether her pain was due to the fact that the neck of the bottle was 

too wide, or if the top of the bottle was "hitting the back" - i.e., pushing against the 

girl's cervix at the end of her vaginal canal.        When the girl replied that the bottle was 

hitting her cervix, Scholes removed the bottle, turned it around, and thrust the wider end 

into his victim's body.  As might be imagined, this second penetration also caused the 

    2   See AS 12.55.125(b). 

    3   See AS 12.55.125(i). 

    4   Juneby v. State , 641 P.2d 823, 840 (Alaska App. 1982). 

                                               - 3 -                                            2351 

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

girl considerable pain.   To help her endure this pain, Scholes gave the girl a teddy bear 

to bite down on. 

                Superior     Court   Judge   Philip    M.   Pallenberg   found     that  this  incident 

involving the bottle was proof that Scholes gratuitously inflicted pain on his victim, over 

and above what was ancillary to his commission of rape.                 Judge Pallenberg noted, in 

particular, that when Scholes inserted the wide end of the bottle into the girl's vaginal 

canal, and the girl cried out in pain, "[Scholes's] response was not to stop causing that 

pain; it was to give her a teddy bear to bite down on - which meant that he consciously 

chose to continue inflicting pain". 

                In his brief to this Court, Scholes argues that the bottle was simply one of 

the means he employed to sexually penetrate his victim, and that therefore any pain that 

he inflicted with this bottle was merely ancillary to his commission of the crime of sexual 

assault.    For the reasons expressed by Judge Pallenberg, we disagree with Scholes's 

characterization of his actions. Based on this record, Judge Pallenberg could reasonably 

find that Scholes purposely inflicted pain on his victim for its own sake.   And based on 

this finding, we uphold Judge Pallenberg's ruling that the State proved aggravator (c)(2). 

        Aggravating   factor   AS   12.55.155(c)(10)   -   conduct   among   the   most 

        serious within the definition of the offense 

                Aggravator (c)(10) applies to cases where the defendant's conduct was 

among the most serious within the definition of the offense.               The question of whether 

Scholes's   conduct   was   among   the   worst   instances   of   kidnapping   was   not   at   issue, 

because sentencing for the offense of kidnapping is not governed by the presumptive 

sentencing law. However, with respect to the charge of sexual assault, Judge Pallenberg 

                                                 - 4 -                                            2351

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

concluded that the facts of Scholes's case showed that his conduct was among the most 

serious within the definition of that crime: 

                         The   Court:      [This   case   is   on]   the   high   end   of   the 

                 scale[.]    ...  [A] defendant goes out and abducts [a stranger] 

                 in   a   public   place,   ...   and   takes   them and   holds   them and 

                 sexually assaults them [repeatedly] for a period of time.               ... 

                 One could certainly come up with ... a more serious rape, one 

                 where there are more grievous physical injuries [inflicted, or] 

                 where the kidnapping lasted longer.   ...   Certainly this is not 

                 the most serious rape ever committed.             But ... that's not the 

                 standard for [this] aggravator. The [question] is: is it among 

                 the most serious within the definition of the offense.              And I 

                 think   [that]   when     one   looks   at  [this]   forcible   rape   and 

                 kidnapping of a stranger who is a minor, where the assault is 

                 particularly   brutal,   as   I   think   this   one   was,   [and]   where 

                 there's the gratuitous infliction of pain and the gratuitous use 

                 of violence, and some really brutal and unspeakable threats 

                 made,     [as   well   as]   multiple    acts   of  penetration,     [and] 

                 penetration with ... a large object - all of those facts, taken 

                 together, ... place this case within ... aggravator [(c)(10)]. 

                 (When Judge Pallenberg spoke of "brutal and unspeakable threats", he was 

apparently referring to the evidence that Scholes threatened to kill his victim, to burn her 

feet, and to insert screws into her body.) 

                 In past cases, we have upheld findings of aggravator (c)(10) based simply 

on the fact that the defendant was being sentenced for a single count which encompassed 

conduct that could have supported multiple convictions.  See Pusich v. State, 907 P.2d 

29, 33 (Alaska App. 1995) (a single count of manslaughter that encompassed three 

deaths); Curl v. State, 843 P.2d 1244, 1245 (Alaska App. 1992) (a single count of sexual 

abuse that encompassed a series of 20 to 25 incidents of abuse).                    See also Monroe v. 

State, 752 P.2d 1017, 1021 (Alaska App. 1988) (holding that aggravator (c)(10) was 

                                                   - 5 -                                               2351

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

supported by the fact that the defendant's act of arson endangered a large number of 

people, rather than the one person minimally necessary to constitute the offense of 

first-degree arson). 

               Here,   Scholes   engaged   in   multiple   acts   of   penetration   that   included 

penetration of the victim's genitals, anus, and mouth. Each of these modes of penetration 

could have supported a separate count of sexual assault. 5       Based on this fact alone, Judge 

Pallenberg might justifiably have found aggravator (c)(10).             And as Judge Pallenberg 

noted, there are other aspects of Scholes's conduct that place his offense among the most 

serious:   the length of the assault, the brutality of the assault (including Scholes's use of 

the bottle), and Scholes's threats to kill the victim (as well as his threats to burn her and 

put screws into her body). 

               We acknowledge that a portion of Judge Pallenberg's remarks could be 

interpreted as violating the rule set forth in Juneby v. State, 641 P.2d 823, 842-43 

(Alaska App. 1982), as modified on rehearing, 665 P.2d 30, 38 (Alaska App. 1983). 

In Juneby, this Court held that a sentencing court should not rely on an aggravating 

factor to increase a presumptive term of imprisonment if that aggravating factor is based 

on conduct for which the defendant is being separately punished.                Here, when Judge 

Pallenberg gave his reasons for characterizing Scholes's conduct as among the most 

serious, he referred to the fact that Scholes kidnapped his victim (conduct that formed 

the basis of Scholes's separate kidnapping conviction). 

               But even when we set the kidnapping aside, there is ample justification for 

classifying Scholes's conduct as among the most serious within the definition of first­ 

    5   See Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997); Yearty v. State, 805 

P.2d 987, 995 (Alaska App. 1991). 

                                               - 6 -                                            2351 

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

degree sexual assault.        We therefore uphold Judge Pallenberg's ruling that the State 

proved aggravator (c)(10). 

        The basic procedural facts of Scholes's sentencing 

                For the offense of kidnapping, Scholes faced an indeterminate sentencing 

range of 5 to 99 years' imprisonment. 6          For the offense of first-degree sexual assault, 

Scholes faced a presumptive sentencing range of 25 to 35 years' imprisonment because 

(1) he was a first felony offender but (2) he used a dangerous instrument (the bottle) 

during his commission of the offense. 7 For the offense of second-degree sexual abuse 

of   a   minor,   Scholes     faced   a  presumptive      sentencing     range   of  5   to  15   years' 

imprisonment. 8      Because the State proved aggravating factors, Judge Pallenberg was 

authorized to impose any sentence up to the 99-year maximum term for both of these 

sexual offenses. 9     The least severe sentence that Judge Pallenberg could impose was 

30 years and one day to serve. 

                (Judge     Pallenberg     had   no   authority   to  impose     less  than   25   years' 

imprisonment to serve for Scholes's sexual assault conviction, because 25 years was the 

low end of the applicable presumptive range, and Scholes did not prove any mitigating 

factors.   Under AS 12.55.127(c)(2)(B), Judge Pallenberg had to impose at least 5 years 

    6   See AS 12.55.125(b). 

    7   See AS 12.55.125(i)(1)(B). 

    8   See AS 12.55.125(i)(3)(A). 

    9   See  AS   12.55.155(a)   (the   effect   of   aggravating   factors   on   a   judge's   sentencing 

authority), AS 12.55.125(i)(1) (specifying a 99-year maximum sentence for first-degree 

sexual assault), and AS 12.55.125(i)(3) (specifying a 99-year maximum sentence for second- 

degree sexual abuse of a minor). 

                                                 - 7 -                                             2351

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

of Scholes's kidnapping sentence consecutive to his other sentences, because 5 years is 

the mandatory minimum penalty for kidnapping. 10       And under AS 12.55.127(c)(2)(F), 

Judge Pallenberg was required to make at   least one day of Scholes's sexual abuse 

sentence consecutive to Scholes's sentence for sexual assault.       Thus, the most lenient 

sentence that Judge Pallenberg could impose on Scholes was a term of imprisonment of 

30 years and one day, all to serve.) 

              Ultimately, Judge Pallenberg imposed 25 years to serve (40 years with 15 

years suspended) for the first-degree sexual assault conviction.         For the offense of 

second-degree sexual abuse of a minor, the judge imposed 13 years with 3 suspended, 

but he made this sentence concurrent with Scholes's other sentences except for one day 

to serve.   And for the offense of kidnapping, Judge Pallenberg imposed a consecutive 

sentence of 30 years with 15 years suspended. Thus, Scholes's composite sentence is 40 

years and one day to serve - 70 years and one day, with 30 years suspended. 

       Judge Pallenberg's decision not to refer Scholes's case to the three-judge 

       sentencing panel 

              Duringthesentencing proceedings,ScholesaskedJudgePallenbergto refer 

his case to the statewide three-judge sentencing panel.   Scholes argued that a referral to 

the three-judge panel was justified on two bases:   first, that Scholes had extraordinary 

prospects for rehabilitation; and second, that the 30-year minimum sentence available to 

Judge Pallenberg under the presumptive sentencing law was manifestly unjust (i.e., 

manifestly too harsh). 

              Judge Pallenberg rejected both of these arguments and declined to send 

Scholes's case to the three-judge panel. 

    10 See AS 12.55.125(b). 

                                           - 8 -                                        2351 

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

               With regard to   the claim that Scholes had   extraordinary prospects   for 

rehabilitation, the court received input from several expert witnesses. Scholes presented 

the testimony of Dr. Mark McClung, a psychiatrist who worked as a consultant with sex 

offender treatment programs, and in his brief to this Court, Scholes relies primarily on 

Dr. McClung's testimony. 

               Dr. McClung testified that he had interviewed and evaluated Scholes, he 

had spoken to Scholes's former wife, and he had reviewed Scholes's police files and 

prior psychiatric records.   Dr. McClung concluded that Scholes suffered from "type I" 

bipolar disorder - the more intense form of the disorder, where the person's behavior 

is characterized by obvious manic episodes. 

               Dr. McClung believed   that Scholes's bipolar   disorder   was  a "primary 

contributor" to Scholes's commission of the kidnapping and sexual assault, and that 

Scholes'smental abnormality was probablyaggravated bythemedications hewas taking 

at the time (steroids and Wellbutrin, an anti-depressant).   Dr. McClung explained that 

people who suffer manic episodes become more impulsive, and that they have impaired 

judgement.       In  addition,  they   sometimes     have   an  atypical   degree   of  "sexual 


               Dr. McClung noted that Scholes had a history of "sexual compulsivity" 

involving pornography and internet sexual contact, and the doctor stated that this sexual 

compulsion mighthavebeen anothersignificantcontributor to Scholes'scriminalactions 

- although Scholes's sexual compulsion could potentially have been worsened by his 

bipolar   disorder.    In   addition,  Dr.   McClung   stated  that  Scholes   had  narcissistic 

personality traits that also could have contributed to his criminal behavior. 

               Dr. McClung told the court that bipolar disorder was treatable - not 

curable, but manageable with medication and monitoring.   The doctor also testified that 

Scholes's narcissistic traits could also be treated through therapy. 

                                             - 9 -                                         2351

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

                Based on all this, and given the fact that Scholes lacked any prior history 

of violence, Dr. McClung concluded that the kidnapping and sexual assault were out of 

character   for   Scholes,   that   Scholes   could   be   rehabilitated,   and   that   (given   proper 

treatment) it was unlikely that Scholes would commit such crimes again. 

                Inhisremarksat theconclusionofthesentencinghearing,JudgePallenberg 

declared   that   Dr.   McClung's   testimony   was   "articulate   and   ...   largely   persuasive". 

Nevertheless, Judge Pallenberg concluded that the doctor's testimony failed to establish 

that Scholes had an extraordinary potential for rehabilitation. 

                Citing this Court's decision in Beltz v. State, 980 P.2d 474 (Alaska App. 

1999), Judge Pallenberg noted that a sentencing court should not find that a defendant 

hasextraordinarypotentialforrehabilitation unless thecourt"is reasonably satisfied both 

that it knows why a particular crime was committed and that the conditions leading to 

the criminal act will not recur - either because the factors that led the defendant to 

commit the crime are readily correctable or because the defendant's criminal conduct 

resulted from unusual environmental stresses unlikely ever to recur."  Beltz, 980 P.2d 

at 481. 11 

                Judge Pallenberg concluded that this test was not met in Scholes's case 

because   "several   factors   ...   [signaled]   caution   about   Mr.   Scholes's   prospects   for 

rehabilitation."   The judge noted that, about one year before the kidnapping and sexual 

assault, Scholes was charged with breaking into a house.                 While this earlier case was 

pending, Scholes committed another,similar break-in. The judge further noted that there 

was a "sexual dimension" to these break-ins, because Scholes dialed 900 numbers (i.e., 

telephone pornography services) while he was inside these residences. 

    11  Quoting Lepley v. State , 807 P.2d 1095, 1100 (Alaska App. 1991), which in turn was 

quoting Kirby v. State, 748 P.2d 757, 766 (Alaska App. 1987). 

                                                 -  10 -                                             2351 

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

                Judge Pallenberg further noted that, after this earlier case was resolved and 

Scholes was ordered to obtain mental health treatment, he failed to do so.                   The judge 

acknowledged that Scholes's bipolar disorder may have made it difficult for him to 

follow through with the court-ordered treatment.   However, the judge noted that if this 

was the case - i.e., "if the disorder itself [impedes] a person from ... following through 

with   treatment   for   the   disorder"   -   then   there   was   reason   to   be   concerned   about 

Scholes's future behavior. 

                Judge   Pallenberg   also   noted   that   Scholes   had   a   "longstanding   sexual 

preoccupation" that apparently predated theonset ofhis bipolar disorder. This suggested 

that Scholes had three underlying problems:  not just the bipolar disorder, but also the 

sexual obsession, as well as substance abuse.   Judge Pallenberg explained, "Successful 

rehabilitation is going to require treatment [of] all three of those things.   And I think it's 

always complex and difficult to treat [a] dual or, here, maybe triple diagnosis." 

                Finally,   Judge   Pallenberg   noted   that   Scholes's   rehabilitation   could   be 

impeded by his narcissistic personality traits and by the fact that he claimed to suffer 

blackouts or gaps in his memory.   As the judge explained, blackouts are not normally a 

feature of bipolar disorder - which suggested that Scholes might have some other 

psychological condition, "some sort of protective or avoidance mechanism". 

                Judge   Pallenberg   stated   that   Dr.   McClung's   analysis   gave   him "some 

reason   to   be   hopeful"   about   Scholes's   prospects   for   rehabilitation.     But   the   judge 

declared that even though there was "reason to be hopeful that Mr. Scholes won't re- 

offend", Scholes had not demonstrated by clear and convincing evidence that he had 

extraordinary prospects for rehabilitation. Rather, according to Judge Pallenberg, "there 

are significant reasons to be cautious about Mr. Scholes's prospects." 

                We have reviewed the record, and we conclude that it supports Judge 

Pallenberg's decision on this issue. 

                                                 -  11 -                                           2351

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

                Moreover, even if Scholes had proved that he had extraordinary potential 

for rehabilitation, Judge Pallenberg was statutorily barred from referring Scholes's case 

to the three-judge panel on this basis.         As we have explained, Judge Pallenberg found 

that the State had proved aggravators (c)(2) and (c)(10). The proof of either of these two 

aggravators precluded a referral to the three-judge panel on the basis of extraordinary 

potential for rehabilitation.       Subsection (b) of the statute that governs referrals to the 

three-judge   panel,   AS   12.55.165,   states   that   a   sentencing   judge   is   prohibited   from 

referring   a   case   to   the   three-judge   panel   based   on   the   defendant's   potential   for 

rehabilitation if the judge finds "[a] factor in aggravation set out in AS 12.55.155(c)(2), 

(8), (10), (12), (15), (17), (18)(B), (20), (21), or (28)". 

                This leaves Scholes's claim that his case should have been referred to the 

three-judge      panel   because    the  30-year    minimum       sentence    required    by   Alaska's 

presumptive sentencing law is manifestly unjust. 

                When Judge Pallenberg addressed this issue, he acknowledged that he had 

to sentence Scholes to at least 30 years to serve, primarily because the 2006 legislature 

enacted drastic increases to the presumptive sentencing ranges for sex offenses.   (As we 

have explained, Scholes faced a presumptive sentencing range of 25 to 35 years for the 

sexual   assault.)     Judge   Pallenberg   also   acknowledged   that   it   was   "the   role   of   the 

legislature, and not the courts" to establish penalties for crimes. 

                The judge stated that he thought Scholes should receive "a very lengthy 

prison term" for his crime, and that the 30-year minimum sentence in Scholes's case was 

not manifestly unjust.       Judge Pallenberg did say that, if the matter were entirely up to 

him, he would make Scholes eligible for discretionary parole if Scholes successfully 

completedsex offender treatment in prisonand if he remained compliant with atreatment 

and medication regimen for his bipolar disorder.   But AS 33.16.090(b)(2) provides that 

                                                 -  12 -                                           2351

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

offenders who are serving presumptive terms for sexual felonies are not eligible for 

discretionary parole. 12 

               Under AS 33.16.090(b), only the three-judge panel had the authority to 

make Scholes eligible for discretionary parole during his sentence.            Accordingly, the 

ultimate question facing   Judge Pallenberg was whether   it was manifestly unjust to 

sentence Scholes to 30 years' imprisonment without the possibility of discretionary 

parole.   Judge Pallenberg concluded that this was not manifestly unjust.           He declared, 

"This is exactly the kind of case that the legislature intended to apply the presumptive 

sentencing ranges to." 

               (In fact, as we have explained, Judge Pallenberg sentenced Scholes to a 

significantly greater term of imprisonment - 40 years to serve.) 

               In his appellate brief, Scholes asserts that Judge Pallenberg reached the 

wrong decision, and that the 30-year minimum sentence required by law was manifestly 

unjust.   But Scholes does not actually argue this claim.         Instead, in his brief, Scholes 

argues that his actual sentence of 40 years to serve is clearly mistaken.             Moreover, 

Scholes does not mention the issue of discretionary parole eligibility, which (as we have 

explained) was the only aspect of the sentence that gave Judge Pallenberg pause. 

               Because Scholes does not argue that even a lesser sentence of 30 years to 

serve would be clearly mistaken, or that any sentence of 30 years or longer would be 

manifestly unjust if it did not include eligibilityfor discretionaryparole,weconcludethat 

Scholes has failed to meaningfully brief the argument that Judge Pallenberg should have 

    12  This statute reads:   "A prisoner [who would otherwise be] eligible [for discretionary 

parole] under (a) of this section [but] who is sentenced ... to a single sentence within or below 

a presumptive range set out in AS 12.55.125 ... (i), and [who] has not been allowed by the 

three-judge panel under AS 12.55.175 to be considered for discretionary parole release, may 

not be released on discretionary parole until the prisoner has served the term imposed, less 

good time earned under AS 33.20.010[.]" 

                                             -  13 -                                        2351

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

referred his case to the three-judge panel on the basis that the prescribed minimum 

sentence was manifestly unjust. 

        Is Scholes's sentence of 40 years to serve, with an additional 30 years 

        suspended, clearly mistaken? 

                The final issue in this appeal is whether Scholes's composite sentence of 

40 years to serve is clearly mistaken. 

                When Judge Pallenberg imposed this sentence, he declared that Scholes's 

crime was "horrific", and that the primary sentencing concern was the goal of isolation. 

                        The Court:       While I think it is true that [Scholes's] 

                bipolar   disorder   played   ...   a   fairly   significant   role   in   the 

                commission of this offense, Mr. Scholes's bipolar disorder 

                isn't   going   to   go   away   tomorrow.      ...  [And]   there   are 

                thousands ofpeople out therewith bipolar disorder who don't 

                kidnap and rape people, and who are compliant with their 

                treatment and don't commit crimes.   ...   [E]ven when people 

                with bipolar disorder aren't compliant with their treatment, 

                most   of them don't   go   out   and   do   things   like   this.  And 

                there's     something     about    Mr.    Scholes,     when    he   was 

                noncompliant with treatment, that caused him to do these 

                things.   And I think ... that makes him a dangerous person. 

                In his brief to this Court, Scholes notes that his sentence is substantially 

more severe than the 20-year benchmark ceiling that this Court established in the 1990s 

for first felony offenders who are convicted of kidnapping and sexual assault.  See Ross 

v. State, 877 P.2d 777, 779-780 (Alaska App. 1994), explaining Williams v. State, 800 

P.2d 955, 958-59 (Alaska App. 1990), as modified on reconsideration, 809 P.2d 931 

(Alaska App. 1991). 

                                                 -  14 -                                           2351

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

                The penalty for kidnapping (5 to 99 years) remains the same as it was in the 

1990s. But in 2006, the legislature substantially increased the presumptive penalties for 

sexual assault.     In the 1990s, defendants like Scholes - first felony offenders who 

committed first-degree sexual assault, and who used a dangerous instrument during the 

commission of the offense - faced a presumptive term of 10 years' imprisonment, and 

a maximum term of 40 years. 13         Now, first felony offenders who commit first-degree 

sexual assault and who use a dangerous instrument face a presumptive range of 25 to 35 

years' imprisonment, and a maximum term of 99 years. 

                As   Judge   Pallenberg   noted   during   his   sentencing   remarks,   within   our 

system of divided government powers, it is the legislature's role to assess the proper 

penalty or range of penalties for a particular crime. 14          Now that the legislature has 

declared that 25 to 35 years is the presumptive   sentencing range for defendants in 

Scholes's circumstances, the 20-year ceiling that this Court established in Williams and 

Ross no longer applies. 

                Scholes argues his criminal behavior was out of character, that his crimes 

arose from a "perfect storm" of mental illness and extenuating circumstances, and that 

it was extremely unlikely that Scholes would ever engage in such behavior again. Based 

on this proposed explanation of his conduct, Scholes argues that a sentence of 40 years 

to serve is clearly mistaken. 

    13  Former AS 12.55.125(i)(1)(B) (pre-2006). 

    14  The Alaska Supreme   Court   has consistently held that the power to determine an 

appropriate punishment for an offense is vested in the legislature. See, e.g., Rust v. State, 582 

P.2d 134, 136-37 (Alaska 1978); B.A.M. v. State, 528 P.2d 437 (Alaska 1974); Faulkner v. 

State, 445 P.2d 815, 818 (Alaska 1968).        See also Dancer v. State, 715 P.2d 1174, 1179 

(Alaska App. 1986) (rejecting various constitutional attacks on presumptive sentencing). 

                                               -  15 -                                         2351

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

               But    as  we    have   explained,   Judge    Pallenberg    found   this  proposed 

explanation   unconvincing.        He   concluded   that   some   of   Scholes's   problems   were 

longstanding ones that predated the onset of his bipolar disorder. He noted that Scholes 

had proved resistant to mental health treatment in the past.            And he concluded that 

Scholes's mental problems entailed more than simply bipolar disorder -because, as the 

judge noted, there are large numbers of people who suffer from bipolar disorder who do 

not commit kidnapping and rape. 

               Scholes's25-year termofimprisonmentfor first-degree sexual assault falls 

at the low end of the applicable presumptive range (25 to 35 years).             That is, it is the 

minimum term of imprisonment that Judge Pallenberg could impose for that crime. And 

Scholes's 15-year term of imprisonment for kidnapping is unremarkable, given the fact 

that the sentencing range for that offense is 5 to 99 years.          The only real question is 

whether   Judge   Pallenberg   was   clearly   mistaken   when   he   imposed   these   terms   of 

imprisonment consecutively, for a composite sentence of 40 years to serve. 

               Our review of the record convinces us that, given the facts of Scholes's 

case, and given the sentencing framework established by the legislature, a composite 

sentence of 40 years to serve is not clearly mistaken. 


               The judgement of the superior court is AFFIRMED. 

                                              -  16 -                                        2351

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights