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Adrian T. Olmstead v State of Alaska (11/6/2020) ap-2683

Adrian T. Olmstead v State of Alaska (11/6/2020) ap-2683

                                                                             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@ akcourts.us  



                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                



ADRIAN  T.  OLMSTEAD,                                                                  

                                                                                                 Court of Appeals No. A-12784                

                                                                                             Trial Court No. 1KE-16-00055 CR  

                                                    Appellant,                                                                                              



                                       v.  

                                                                                                                  O P I N I O N  

                                                                                                                                           

STATE  OF  ALASKA,  



                                                    Appellee.                                   No. 2683 - November 6, 2020  

                                                                                                                                                      



                          Appeal  from  the  Superior  Court,  First  Judicial  District,  

                                                                                                                               

                          Ketchikan,  Trevor N.  Stephens,  Judge,  and the Statewide  

                                                                                                                            

                          Three-Judge Sentencing Panel, Anna M. Moran, Michael P.  

                                                                                                                                            

                          McConahy, and Eric A. Aarseth, Judges.  

                                                                                             



                          Appearances:  Gavin Kentch, Law Office of Gavin Kentch,  

                                                                                                                                 

                          LLC, under contract with the Public Defender Agency, and  

                                                                                                                                         

                          Quinlan   Steiner,   Public   Defender,   Anchorage,   for   the  

                                                                                                                                        

                          Appellant.   Eric A. Ringsmuth, Assistant Attorney General,  

                                                                                                                               

                          Office           of      Criminal              Appeals,              Anchorage,                and         Jahna  

                                                                                                                                  

                          Lindemuth, Attorney General, Juneau, for the Appellee.  

                                                                                                                                         



                          Before:   Allard,  Chief Judge,  Harbison,  Judge,  and Coats,  

                                                                                                                                   

                          Senior Judge.*  

                                                        



       *     Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   11   of   the   Alaska  



Constitution and Administrative Rule 23(a).                           


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

                              Judge ALLARD.   



                              Adrian T. Olmstead pleaded guilty to one count of second-degree sexual                                                                             

                                                                                                                                                 1    At sentencing,  the  

abuse of a minor for engaging in sexual contact                                                                with his niece.                                                          



superior court found that Olmstead had proved the non-statutory mitigating factor  of  

                                                                                                                                                                                         



exemplary post-offense conduct, and the superior court referred Olmstead's case to the  

                                                                                                                                                                                         

statewide three-judge sentencing panel.2                                                      However,  the three-judge panel found that  

                                                                                                                                                                                      



Olmstead had failed to prove the non-statutory mitigator, and the case was remanded to  

                                                                                                                                                                                           



the superior court for sentencing within the presumptive range.  

                                                                                                                             



                              Olmstead  appeals  the  three-judge  panel's  decision.                                                                      For  the  reasons  

                                                                                                                                                                              



explained  here,  we  conclude  that  Olmstead  established  the  non-statutory  mitigating  

                                                                                                                                                                         



factor of exemplary post-offense conduct.  Accordingly, we vacate Olmstead's sentence  

                                                                                                                                                                            



and remand this case to the three-judge panel for reconsideration of what effect, if any,  

                                                                                                                                                                                     



the non-statutory mitigator should have on Olmstead's sentence.  

                                                                                                                                               



               Factual and procedural history  

                                                                      



                              At  the  time  of  his  offense,  nineteen-year-old  Olmstead  lived  with  his  

                                                                                                                                                                                        



parents in a household with strong religious structure.   Olmstead had frequent contact  

                                                                                                                                                                               



with his four-year-old nephew, K.R., and his six-year-old niece, L.R., who visited their  

                                                                                                                                                                                      



grandparents and slept overnight on a regular basis.  

                                                                                                     



                              In late January 2016, L.R. and K.R. disclosed to their parents a "game" they  

                                                                                                                                                                                      



had played with Olmstead where he had his pants down, they saw his genitals, and they  

                                                                                                                                                                                     



        1      AS 11.41.436(a)(2).                         Olmstead was charged with two counts relating to his niece, and                                                               



one count relating to his nephew.                                       He pleaded guilty to one count relating to his niece, but                                                        

he admitted to the facts underlying all three charges.                                      



       2  

                                                                                                                                             

               See State v. McKinney, 946 P.2d 456, 457-58 (Alaska App. 1997).  



                                                                                           - 2 -                                                                                      2683
  


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

                                                                                                                            

grabbed his "pee pee."  L.R. also said she had seen her uncle with his pants off at other  



                                          

times and that he "moons" them.  



                                                                                                                    

                    When  confronted  by  his  sister  and  brother-in-law  about  the  children's  



                                                                                                                              

statements,  Olmstead  admitted  that  most  of  what  the  children  said  was  true.                                        He  



                                                                                                                           

expressed remorse and apologized.  The following day, he also volunteered details about  



                                                                                                                              

another incident that occurred months earlier when  he pulled down L.R.'s pants and  



                                                                                                                               

briefly touched and patted her vagina while playing a game of "doctor" with L.R.  At the  



                                                                                                                                     

request of the victims' parents, Olmstead agreed to undergo mental health counseling.  



                                                                                                                         

                    Olmstead attended a mental health assessment the next day.  The mental  



                                                                                                                               

health therapist later reported that Olmstead was "cooperative" and "corroborated the  



                                                                                                                                

information his sister [the victims' mother] provided earlier."  She found that he was "a  



                                                                                                                      

reliable  reporter  regarding  his  interactions  with  his  niece  and  nephew,  although  



                                                                                                                             

extremely naive in terms of sexual taboos."  According to the therapist, Olmstead was  



                                                                                                                             

"willing to comply with any recommendations made," and he agreed to return the next  



                                                                                                                     

day but was ultimately unable to do so because he was arrested. The therapist concluded  



                                                           

her report with the following analysis:  



                                                                                                

                    In summary, I was impressed by Mr. Olmstead's ownership  

                                                                                             

                    of his actions.  He easily could have denied all accusations,  

                                                                                                             

                    which  would  have  catapulted  his  niece  and  nephew  in  a  

                                                                                                 

                    lengthy investigation.             His immediate confession protected  

                                                                         

                    those for whom he cared deeply.  



                                                                                                                               

The abuse was reported to law enforcement on the same day that Olmstead attended the  



                                                                                                                                     

mental health assessment.   The next day, the children were interviewed by the police.  



                                                                                                                           

In her interview, L.R. reported that both she and Olmstead had their pants pulled down  



                                                                                                                               

during the game of "doctor," and that Olmstead had "patted" her  vagina and put his  



                                                                                                                      

hands "between her butt cheeks," spreading them apart. She also reported that Olmstead  



                                                                                      

had asked her to "touch his butt," and his penis, but she refused.  



                                                              - 3 -                                                          2683
  


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

                                  Olmstead was then contacted by law enforcement and asked to come to the                                                                                                          



police station for an interview.                                              Against the advice of his parents, Olmstead voluntarily                                                           



went to the police station without a lawyer.                                                                   Olmstead waived his right to counsel and                                                          



agreed to be interviewed by the police.                                                               In the interview,                             Olmstead confessed to the                                     



sexual    interactions    with    his    niece    and    nephew,    largely    confirming    their    reports.   



Olmstead also admitted to having an erection during five of the interactions.                                                                                                                   



                                  At the end of the interview, Olmstead was arrested and charged with three                                                                                                   



counts of second-degree sexual abuse of a minor                                                                                   and   two counts of second-degree                   



                                               3  

indecent exposure.                                  



                                  During the same week that he was arrested, Olmstead also contacted - on  

                                                                                                                                                                                                                     



his own initiative - the elders at his church to confess to what he had done and to seek  

                                                                                                                                                                                                               



spiritual guidance.   After Olmstead was released on bail, he attended weekly meetings  

                                                                                                                                                                                                    



at the church for about four hours a week.                                                                            He  also  received one-on-one pastoral  

                                                                                                                                                                                                      



counseling for one to two hours a week.  

                                                                                     



                                  Olmstead subsequently pleaded guilty to one count of second-degree sexual  

                                                                                                                                                                                                            



abuse  of  a  minor  in  exchange  for  dismissal  of  the  remaining  charges.                                                                                                                    The  plea  

                                                                                                                                                                                                               



agreement provided that his active term of imprisonment would be capped at 8 years and  

                                                                                                                                                                                                                 



that  one  aggravating  factor  applied  to  his  conduct  -  the  victim  was  particularly  

                                                                                                                                                                                             

vulnerable given her age.4                                          As part of the plea agreement, Olmstead also admitted to the  

                                                                                                                                                                                                                   



conduct underlying the dismissed charges.  

                                                                                                             



                                  At the sentencing hearing, Olmstead and his mother testified.  His mother  

                                                                                                                                                                                                        



described  Olmstead's  sheltered  and  religious  upbringing.                                                                                           Olmstead  testified  to  his  

                                                                                                                                                                                                                  



         3       AS 11.41.436(a)(2) and AS 11.41.460, respectively.                                                                             



         4  

                                                                     

                 AS 12.55.155(c)(5).  



                                                                                                        - 4 -                                                                                                   2683
  


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

attempts to be as honest as he could be and to atone for what he had done.                                                                                              In describing   



his own conduct, Olmstead referred to it as a "game" that had gone too far.                                                                                                    



                               Olmstead's attorney asked the sentencing judge to refer Olmstead's case                                                                                       



to the statewide three-judge sentencing panel to consider two non-statutory mitigating                                                                                          



                                                                                                                                                                                                     5  

factors:   exemplary post-offense conduct and extraordinary potential for rehabilitation.                                                                                                               



                               The sentencing judge ruled first that Olmstead had not established the non- 

                                                                                                                                                                                             



statutory  mitigating  factor  of  extraordinary  potential  for  rehabilitation.                                                                                             The  judge  

                                                                                                                                                                                         



acknowledged that there was good reason to be optimistic about Olmstead's potential for  

                                                                                                                                                                                                



rehabilitation,  and  he  noted  that  many  of  the  factors  supporting  the  non-statutory  

                                                                                                                                                                      



mitigating factor of extraordinary potential for rehabilitation existed in Olmstead's case,  

                                                                                                                                                                                            



such as remorse,  lack of prior criminal history,  and family support.                                                                                                 But the judge  

                                                                                                                                                                                          



ultimately  concluded  that  Olmstead  had  failed  to  meet  his  burden  of  proving  

                                                                                                                                                                                   



extraordinary potential for rehabilitation because Olmstead had failed to provide a sex  

                                                                                                                                                                                              



offender risk assessment or other expert evaluation that could have clarified why this  

                                                                                                                                                                                              



conduct happened and why it would not happen again.  

                                                                                                                                  



                               The judge agreed, however, that Olmsteadhad established the non-statutory  

                                                                                                                                                                         



mitigating factor of exemplary post-offense conduct.   In his written order transmitting  

                                                                                                                                                                            



the case to the three-judge panel, the judge catalogued the actions that Olmstead had  

                                                                                                                                                                                              



taken that constituted exemplary post-offense conduct.  The judge noted first Olmstead's  

                                                                                                                                                                             



prompt confession and apology:  

                                                      



                               Mr. Olmstead promptly confessed when confronted by K.R.'s  

                                                                                                                                                          

                               father about the incident with K.R.                                                     He  contacted K.R.'s  

                                                                                                                                                         

                               parents                later          that         day           and          expressed                  remorse                 and  

                                                                                                                                                             

                               acknowledged  that  the  children  were  basically  telling  the  

                                                                                                                                                                



        5       Olmstead also                    requested referral                        on the           basis   of   the   non-statutory "cumulative"   



mitigating factor recognized in                                    Luckart v. State                  , 270 P.3d 816, 820 (Alaska App. 2012). The                                               

sentencing judge rejected this basis for referral.                                                         



                                                                                               - 5 -                                                                                         2683
  


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

                                                                                                       

                    truth.  He met with K.R.'s father a day or two later and during  

                                                                                                   

                    that  conversation  he  talked  about  the  "doctor"  incident  

                                                                                                         

                    involving L.R.,  which apparently had not previously been  

                                                                                                      

                    brought up.  The family met and decided that the best course  

                                                                                               

                    of action would  be  for Mr.  Olmstead to seek counseling,  

                                    

                    which he did.  



                                                                                                                              

The judge also noted Olmstead's cooperation with the police and the other steps he took  



                                                          

to minimize the harm to the victims:  



                                                                                                     

                    Mr. Olmstead . . . did voluntarily go to [the police] without  

                                                                                                             

                    counsel where he waived his Miranda rights and agreed to be  

                                                                                                          

                    interviewed.          He confessed during the interview.                       He pled  

                                                                                                         

                    guilty without the case going to trial, so neither K.R. nor L.R.  

                                                                                                            

                    was required to testify in open court.  He wrote a letter to the  

                                                                                                

                    victims in which he accepted responsibility and apologized  

                                                                                             

                     for   his  actions.           He  has  consistently  and  continually,  

                                                                                                    

                    throughout this case, accepted responsibility for his conduct,  

                                                                                                           

                    apologized  to  the  [sic]  L.R.,  K.R.,  their  parents  and  his  

                                                                                                             

                     family,  and there is nothing in the record which  shows or  

                                                                                          

                     suggests that he has blamed L.R. or K.R. for anything.  



                                                                                                                

Based on these actions, the judge found that Olmstead had established the non-statutory  



                                                                                                                                   

mitigator of exemplary post-offense  conduct, noting that, in his view, "[t]his is not a  



                                                                                                                               

particularly close call."  In a footnote in his written order, the judge acknowledged that  



                                                                                                                               

the victims' family was currently estranged from the extended family, but he found that  



                                                                                                                                 

Olmstead's post-offense conduct had not contributed to the intra-family problems.  



                                                                                                                            

                    In addition to finding exemplary post-offense conduct, the judge also found  



                                                                                                                           

that it would be manifestly unjust for Olmstead to be ineligible for discretionary parole  



                                                                                 

once he completed sex offender treatment in prison.  



                                                                                                                                

                    Based on the judge's findings,  Olmstead's case was transferred  to the  



                                                                                                                           

statewide three-judge sentencing panel.   The three-judge panel held a hearing in which  



                                                                                                                                

Olmstead's father testified and the victims' father made a brief statement.  Olmstead did  



                                                               - 6 -                                                          2683
  


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

not testify, although the panel had a transcript of his testimony from the superior court                                                                                                                                                                                                                                   



 sentencing.    



                                                    At   one   point,   Olmstead's    father   was   questioned   about   Olmstead's  



counseling.    Olmstead's father testified that Olmstead was unable to continue with the                                                                                                                                                                                                                                             



mental health counseling during his pretrial release because he did not have the money.                                                                                                                                                                                                                                                             



He noted, however, that Olmstead continued to attend weekly meetings at the church and                                                                                                                                                                                                                                              



to engage in one-on-one pastoral counseling.                                                                                                                                    When asked why Olmstead had not seen                                                                                                            



any specialized sex offender therapists, Olmstead's father stated that the family did not                                                                                                                                                                                                                                            



know "who to talk to about that."                                                                                                     



                                                    Following the hearing, the three-judge panel issued an order rejecting the                                                                                                                                                                                                       



non-statutory mitigating factor of exemplary post-offense conduct.                                                                                                                                                                                               In rejecting the non-                                          



 statutory    mitigator,    the    three-judge    panel    primarily    focused    on    (1)    the    current  



estrangement   between   the   victims'   family   and   the   extended   family;   (2)   Olmstead  



referring to the sexual abuse as a "game" that went "too far," which the three-judge panel                                                                                                                                                                                                                                   



viewed   as   "minimiz[ing]"   his   behavior;   and   (3)   Olmstead   failing   to   provide   a   sex  



offender risk assessment or to attend sex offender treatment prior to sentencing.                                                                                                                                                                                           



                                                    Because the three-judge panel rejected the superior court's grounds for                                                                                                                                                                                                          

                                                                                                                                                                                                                                                                                                                              6          At  

referral,   Olmstead's   case   was   remanded   to   the   superior   court   for   sentencing.     



 sentencing, the judge imposed a sentence of 10 years with 5 suspended, 5 years to serve  

                                                                                                                                                                                                                                                                                                                            

- the minimum active term permitted under the applicable presumptive range.7  

                                                                                                                                                                                                                                                                                           



                                                     This appeal followed.  

                                                                                                                                            



             6            See  AS 12.55.175(b);                                                            Garner v. State                                              , 266 P.3d 1045, 1047-48 (Alaska App. 2011).                                                                                                     



             7  

                                       

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



                                                                                                                                                                 - 7 -                                                                                                                                                            2683
  


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

                 The non-statutory mitigating factor of exemplary post-offense conduct                                                                                                                 



                                  Created   by   the   Alaska   legislature   in   1978,   the   statewide   three-judge  



sentencing panel serves as an important safety valve in Alaska's presumptive sentencing                                                                                                          



                     8  

scheme.                                                                                                                                                                                                               

                           "A sentencing court must refer a case to the three-judge sentencing panel in  



                                                                                                                                                                                            

two circumstances:  (1) if the judge concludes that a sentence within the presumptive  



                                                                                                                                                                                                                   

range would be manifestly unjust under the  Chaney sentencing criteria; [or] (2) if the  



                                                                                                                                                                                                          

defendant proves a non-statutory mitigating factor and the judge concludes that it would  



                                                                                                                                                                                                                  

be  manifestly  unjust  to  fail  to  consider  that  non-statutory  factor  in  imposing  the  



                                                          9  

                                                             

defendant's sentence." 



                                  Extraordinary  potential for  rehabilitation  is  a  commonly  asserted  non- 

                                                                                                                                                                                                               

statutory mitigating factor.10  A defendant has established this non-statutory mitigator "if  

                                                                                                                                                                                                                     



the  court  is  satisfied,  after  reviewing  the  totality  of  the  circumstances,  that  [the  

                                                                                                                                                                                                                



defendant] can adequately be treated in the community and need not be incarcerated for  

                                                                                                                                                                                                                    

the full presumptive term in order to prevent future criminal activity."11  

                                                                                                                                                                                     



         8       See  SLA1978,                       ch. 166,  12 (creating                               the three-judge sentencing panel); Nell v. State                                                               ,  



642   P.2d   1361,   1370   (Alaska   App.   1982)   (upholding   Alaska's   presumptive   sentencing  

scheme as constitutional in part because of the existence of the three-judge panel, which has                                                                                                                       

"broad sentencing discretion under AS 12.55.175 if it finds that a presumptive sentence                                                                                                             

would result in 'manifest injustice'");                                                    see also               Letter of Intent for Senate                                         Bill 218, 2006          

Senate Journal 2212 (emphasizing the importance of the three-judge panel as a "safety net"                                                                                                                        

for sex offender cases that are "exceptional" or that "cr[y] out for mercy").                                                                                                       



         9       Daniels v. State , 339 P.3d 1027, 1030 (Alaska App. 2014).  

                                                                                                                                                



         10  

                                                                                                                                                                                                              

                 See, e.g., O'Connor v. State, 444 P.3d226,232-35 (Alaska App. 2019);Beltz v. State ,  

                                                                                                                                                                                                          

980 P.2d 474, 481 (Alaska App. 1999); Lepley v. State , 807 P.2d 1095, 1099-1101 (Alaska  

                                                                                                                                                 

App. 1991); Kirby v. State , 748 P.2d 757, 766 (Alaska App. 1987).  



         11      Kirby , 748 P.2d at 766; see also O'Connor, 444 P.3d at 234 ("[A] sentencing judge  

                                                                                                                                                                                                               

.  . . must have articulable reasons, based on the evidentiary record, for concluding that the  

                                                                                                                                                                                                                   

                                                                                                                                                                                            (continued...)  



                                                                                                        - 8 -                                                                                                    2683
  


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

                        A closely related non-statutory mitigating factor is exemplary post-offense                                  



                12  

conduct.                                                                                                                                                 

                     This non-statutory mitigator was first recognized in State v.  McKinney, a  



                                                                                                                                                     

sexual abuse case in  which the non-statutory mitigator of extraordinary potential for  



                                                                                                                                                    

rehabilitation was statutorily barred because of an aggravator the sentencing judge had  

            13     In  McKinney,  we  acknowledged  that  there  was  some  overlap  between  

found.                                                                                                                                     



extraordinary potential for rehabilitation and exemplary post-offense conduct, but we  

                                                                                                                                                     



distinguished  the  non-statutory  mitigating factor  of  exemplary  post-offense  conduct  

                                                                                                                                           



based on its "significant potential to ameliorate the impact of [the offense] on [the victim]  

                                                                                                                                               

and to enhance [the victim's] prospects for emotional recovery."14  

                                                                                                 



                        McKinney  involved a father who sexually abused  his daughter.                                                          When  

                                                                                                                                               



confronted by his wife, McKinney admitted the abuse, and the family made a collective  

                                                                                                                                          



decision to seek counseling and report the abuse to law enforcement.  McKinney made  

                                                                                                                                                  



a  full  confession  to  state  troopers,  and  he  began  sex-offender  counseling  prior  to  

                                                                                                                                                       



      11    (...continued)  



                                                                                                                                                       

defendant can be rehabilitated earlier than the minimum term of imprisonment prescribed by  

                                                                                                                                                    

the applicable presumptive sentencing range - even though these articulable reasons may  

                                                                                                                                               

not  precisely identify the  ultimate  causes  of  the  defendant's  criminal  behavior." (citing  

                                   

Lepley , 807 P.2d at 1095)).  



      12    See State v. McKinney, 946 P.2d 456, 457 (Alaska App. 1997) (approving of the  

                                                                                                                                                      

sentencing  judge's  conclusion  that  society  should  value  the  "beneficial  results"  of  a  

                                                                                                                                                        

defendant's  responsible  post-offense  behavior  -  conduct  that  "would foster  a victim's  

                                                                                                                                             

recovery").  

                     



      13    Id.  at 458; see AS 12.55.165(b) (explaining that the court "may not refer a case to a  

                                                                                                                                                         

three-judge panel based on the defendant's potential for rehabilitation if the court finds that  

                                                                                                                                                     

a factor in aggravationset out in AS12.55.155(c)(2),(8), (10), (12), (15), (17), (18)(B), (20),  

                                                                                                                                                   

(21), or (28) is present").  

                            



      14    McKinney , 946 P.2d at 458; see also Daniels, 339 P.3d at 1031-32 (acknowledging  

                                                                                                                                 

the overlap between the two non-statutory mitigating factors of extraordinary potential for  

                                                                                                                                                      

rehabilitation and exemplary post-offense conduct).  

                                                                                          



                                                                          - 9 -                                                                    2683
  


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

sentencing.    Despite the seriousness of the charges, the family - including the victim                                                           



-   desired reunification.                     The family counselor thought reunification was a workable                                   



                                                                                                                                  15  

option and urged the sentencing judge to promote it as soon as possible.                                                              



                                                                                                                                                     

                        The sentencing judge concluded that "manifest injustice would result from  



                                                                                                                                   

her inability to consider a non-statutory mitigating factor - exemplary post-disclosure  

                  16   As the judge explained:  

conduct."                                                         



                         [I]n the instance before the court, the offender's post-crime  

                                                                                                                   

                        conduct legitimately sets him apart from other offenders who  

                                                                                                                              

                        commit  the  same  offense.                            Society  should  value  actions  

                                                                                                                        

                        which help a victim of intra-family abuse to recover from the  

                                                                                                                                

                        devastation of sexual abuse.[17]  

                                                                                  



The judge then described the type of post-crime conduct that could qualify as exemplary  

                                                                                                                                           



in these situations:  

                                   



                        There are things which will help  a  victim's recovery:   an  

                                                                                                                                

                        offender publicly and privately accepting responsibility for  

                                                                                                                                

                        the conduct; an offender assuming blame and communicating  

                                                                                                           

                        the  blamelessness  of  the  victim;  and  support  from  the  

                                                                                                                               

                        non-offending parent (which is more forthcoming when the  

                                                                                                                                

                        offending   parent                   accepts          responsibility             and       does         not  

                                                                                                                              



                                                                                                            [18]   

                        minimize [their] conduct or blame the victim).                                             

                                                                                               



But  as  the  judge  recognized,  "the  current  sentencing scheme  precludes  the  court's  

                                                                                                                                                

consideration of these factors."19  Instead, "[i]t treats an offender who engages in further  

                                                                                                                                                  



post-disclosure conduct which hurts a victim in the same way that it treats an offender  

                                                                                                                                              



      15    McKinney , 946 P.2d at 457.                        



      16    Id.  



      17    Id.  



      18  

                   

            Id.  



      19    Id.  



                                                                          -  10 -                                                                     2683
  


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

                                                                                                                                                                                                                    20  

 who behaves responsibly post-disclosure to                                                                                          help a victim's recovery."                                                            Because the   



judge found that it was manifestly unjust to sentence McKinney without taking into                                                                                                                                                                   



 consideration his exemplary post-offense conduct, she referred his case to the three-judge                                                                                                                                      



                  21  

 panel.                 



                                         The  three-judge panel agreed with the sentencing judge's analysis  and  

                                                                                                                                                                                                                                                     



 sentenced McKinney to a non-presumptive term of 8 years, thereby making McKinney  

                                                                                                                                                                                                                                  

 eligible for discretionary parole after he completed sex offender treatment in prison.22  

                                                                                                                                                                                                                                                                   

 The State appealed, and we affirmed the sentence on appeal.23  

                                                                                                                                                                



                     The current case  

                                                         

                                        Whether a mitigating factor exists is a mixed question of law and fact.24   We  

                                                                                                                                                                                                                                                       



 review factual findings under the clearly erroneous standard, affirming the lower court's  

                                                                                                                                                                                                                                             



 findings unless we are left with a definite and firm conviction that a mistake has been  

                                                                                                                                                                                                                                                  



           20       Id.  



           21       Id.  



           22       Id.;   see Luckart v. State                                            , 314 P.3d 1226, 1238 (Alaska App. 2013)                                                                                       (holding that   



 "AS 12.55.175(c) gives the three-judge panel the authority to expand a defendant's eligibility                                                                                                                                       

 for discretionaryparole unless that authority is restricted by some other statutory provision");                                                                                                                                                                  

 cf.  AS 33.16.090(a)(1) (making a defendant convicted of                                                                                                           second-degree sexual abuse of a                                                           

 minor ineligible for discretionary parole unless it has been "allowed by the three-judge panel                                                                                                                                                    

 under AS 12.55.175").                                            



           23  

                                                                                       

                    McKinney , 946 P.2d at 457.  



           24  

                                                                                                                                                    

                    Michael v. State , 115 P.3d 517, 519 (Alaska 2005).  



                                                                                                                         -  11 -                                                                                                                     2683
  


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

          25  

made.           We   review   the   legal   determination   of   whether   those   facts   establish   the  



                                           26  

mitigating factor de novo.                        



                      Here, the sentencing judge found that Olmstead had established the non- 

                                                                                                                                         



statutory  mitigating factor  of  exemplary  post-offense  conduct  based  on  Olmstead's  

                                                                                                                              



"general course of post-offense conduct," which the court found was "similar in nature  

                                                                                                                                       



to that of the [d]efendant in McKinney and was beneficialto the victim in the sense found  

                                                                                                                                        



to be pertinent in McKinney ."  This course of conduct included:  promptly confessing  

                                                                                                                                



and  apologizing,  agreeing  to  seek  counseling,  cooperating with  the  police,  pleading  

                                                                                                                                   



guilty, and "consistently and continually" accepting responsibility for his conduct and  

                                                                                                                                           



not blaming the victims.  

                                          



                      The three-judge panel did not disagree with any of these findings.  Instead,  

                                                                                                                                    



the three-judge panel focused on other facts that it believed precluded  a  finding of  

                                                                                                                                             



exemplary post-offense conduct.  These facts were Olmstead's references to the sexual  

                                                                                                                                       



abuse as a "game" that went "too far," which the panel viewed as "minimizing"  his  

                                                                                                                                            



conduct;  Olmstead's  failure  to  engage  in  sex  offender  treatment;  and  the  current  

                                                                                                                                     



estrangement between the victims' family and the extended family.  

                                                                                                     



                      On  appeal,  Olmstead's  appellate  attorney  challenges  these  reasons  for  

                                                                                                                                            



rejecting  the  non-statutory  mitigator.                             First,  the  attorney  disputes  that  Olmstead  

                                                                                                                                



"minimized" his conduct.   The attorney points to  multiple places in the record where  

                                                                                                                                       



Olmstead acknowledged the seriousness of his conduct, and the attorney also points to  

                                                                                                                                              



the  sentencing judge's  express  finding  that  Olmstead  "consistently  and  continually"  

                                                                                                                             



accepted responsibility for his conduct and did not blame the victims.  

                                                                                                                      



      25   Id.;  see also Booth v. State              , 251 P.3d 369, 373 (Alaska App. 2011).               



      26  

                                              

           Michael , 115 P.3d at 519.  



                                                                    -  12 -                                                               2683
  


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

                                                Next, the attorney disputes that Olmstead failed to engage in sex offender                                                                                                                                                             



treatment.    The attorney asserts that the pastoral counseling that Olmstead                                                                                                                                                                                                         received  



constituted a "culturally meaningful response to his situation" and was "the functional                                                                                                                                                                                          



equivalent   of   a   secular   defendant   undergoing formal treatment                                                                                                                                                                   with   a   licensed   sex- 



offender treatment program."                                                                                The attorney also argues that sex offender treatment is                                                                                                                                            



expensive and the record suggests that Olmstead was unable to afford such treatment.                                                                                                                                                                                                                                



                                                Lastly, the attorney argues that the current estrangement should not be held                                                                                                                                                                           



against Olmstead.                                                  The attorney                                             argues specifically that the exemplary post-offense                                                                                         



conduct non-statutory mitigator should not be limited to only those defendants who                                                                                                                                                                                                                   



achieve family reunification because, in some cases, not reconciling may be what the                                                                                                                                                                                                                      



victim wants.                                      



                                                Some of these arguments are well-taken.                                                                                                           In  Auer v. State                                          , an unpublished     



case, we affirmed the sentencing judge's finding of no exemplary post-offense conduct                                                                                                                                                                                                    



because the record showed that the defendant deflected blame                                                                                                                                                                          onto the child victim,                                

                                                                                                                                                                                                                                                                     27   The record  

asserting that the child "came onto him" and so he "gave in to her flirting."                                                                                                                                                                                                                 



also  showed  the  defendant  "did  not  undertake  any  exceptional  efforts  to  assume  

                                                                                                                                                                                                                                                                                         

responsibility or assist the victim."28  

                                                                                                                                  



                                                Here, in contrast, the record shows that Olmstead has consistently accepted  

                                                                                                                                                                                                                                                                                       



responsibility for his conduct and has not deflected blame onto the victims.  The record  

                                                                                                                                                                                                                                                                                              



also shows that Olmstead has repeatedly  acted in a manner intended to reduce the  

                                                                                                                                                                                                                                                                                                         



secondary trauma to his niece and nephew that a more extensive criminal investigation  

                                                                                                                                                                                                                                                                         



and prosecution would likely have caused.  

                                                                                                                                                          



            27          Auer v. State                                , 2006 WL 3691690, at *1-2 (Alaska App. Dec. 13, 2006) (unpublished).                                                                                                                            



            28  

                                                        

                        Id . at *2.  



                                                                                                                                                 -  13 -                                                                                                                                               2683
  


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

                                           We   also   agree    with   Olmstead's   appellate   attorney   that   the   current  



estrangement between the victims' family and the extended family should not preclude                                                                                                                                                                      



a finding of exemplary post-offense conduct in this case.                                                                                                                          As the sentencing judge found,                                                



Olmstead's post-offense conduct did not contribute to the estrangement, which seems to                                                                                                                                                                                          



have been caused by other family members.                                                                                                      We also do not believe that the exemplary                                                             



post-offense conduct non-statutory mitigator should be reserved only for those cases                                                                                                                                                                                



where family reunification is the goal, because some victims and their families may not                                                                                                                                                                                     



want reunification.                                               Instead,   the critical question should be whether the defendant's                                                                                                            



conduct post-offense had "significant potential to ameliorate the impact of the sexual                                                                                                                                                                            

                                                                                                                                                                                                                                                                 29        We  

abuse on [the victims] and to enhance [their] prospects for emotional recovery."                                                                                                                                                                                         



agree  with  the  sentencing judge  that  Olmstead's  post-offense  conduct  qualified  as  

                                                                                                                                                                                                                                                                              



exemplary conduct in this regard.  

                                                                                    



                                           Lastly, we agree with Olmstead's attorney that Olmstead's mental health  

                                                                                                                                                                                                                                                                   



assessment and pastoral counseling are additional factors  to  be  weighed in favor of  

                                                                                                                                                                                                                                                                              



finding exemplary post-offense conduct.   We do not agree, however, that the pastoral  

                                                                                                                                                                                                                                                            



counseling was the "functional equivalent" of sex offender treatment.   Although there  

                                                                                                                                                                                                                                                                     



may  be  circumstances  in  which  pastoral counseling is  as  effective  as  sex offender  

                                                                                                                                                                                                                                                         



treatment, there is little evidence of that in this case.  To the contrary, Olmstead's use of  

                                                                                                                                                                                                                                                                               



the word "game" and his insistence that his conduct was not  sexual suggests that he  

                                                                                                                                                                                                                                                                             



currently lacks insight into his criminal behavior.                                                                                                                    (However,  unlike the  three-judge  

                                                                                                                                                                                                                                               



panel, we do not find  this  lack of insight surprising given Olmstead's young age, his  

                                                                                                                                                                                                                                                                            



sheltered upbringing, and the relative speed with which this case resolved.)  

                                                                                                                                                                                                                                                 



           29         State v. McKinney                                        , 946 P.2d 456, 458 (Alaska App. 1997);                                                                                    see also Auer                               , 2006 WL            



3691690, at *2 (affirming the superior                                                                               court's decisionnotto                                              refer the case to                               the three-judge   

panel because the defendant "attempted to deflect some blame onto the victim" and "did not                                                                                                                                                                                  

undertake any exceptional efforts to assume responsibility or assist the victim").                                                                                                                                       



                                                                                                                                   -  14 -                                                                                                                               2683
  


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

                           It is not clear from the record why Olmstead did not provide a sex offender                                                       



risk   assessment.     It   is   possible   money   was   the   problem,   as   the   appellate   attorney  

                                                                                                    30    In any case, we do not agree with  

suggests, or there may be some other explanation.                                                                                                                    



the three-judge panel's conclusion that the absence of a sexoffender risk assessment was  

                                                                                                                                                                      



fatal to Olmstead's claim of exemplary post-offense conduct in the same way that it  

                                                                                                                                                                           

appears to have been fatal to his claim of extraordinary potential for rehabilitation.31   The  

                                                                                                                                                                     



two non-statutory mitigators - although overlapping in many ways - target different  

                                                                                                                                                            



public policy concerns.  

                                                 



                           In rejecting the non-statutory mitigating factor of exemplary post-offense  

                                                                                                                                                     



conduct, the three-judge panel appeared to focus on the ways in which Olmstead's post- 

                                                                                                                                                                    



offense conduct was not necessarily perfect.  But there is almost always something more  

                                                                                                                                                                   



that a defendant could do, and if "exemplary" is interpreted to mean "perfect," then there  

                                                                                                                                                                    



will always  be  something that will prevent the courts from finding this non-statutory  

                                                                                                                                                   



mitigating  factor.                       "Exemplary"  can  also  mean  "serving  as  a  model,"  "deserving  

                                                                                                                                                        

imitation," or "commendable."32                                     The record here shows that Olmstead's post-offense  

                                                                                                                                                     



conduct  was  commendable  and  deserving of  imitation,  and  a  model for  other  sex  

                                                                                                                                                                      



       30    We note that Olmstead is indigent and was represented by public counsel.                                                                      However,  



typically the public agency representing an indigent defendant will pay the costs of a sex                                                                             

offender risk assessment.                          



       31     Compare Kirby v. State, 748 P.2d757, 767 (Alaska App. 1987) (finding extraordinary  

                                                                                                                                                     

potential  for  rehabilitation where  defendant  presented expert  psychological  evidence  at  

                                                                                                                                                                          

sentencing), with Lepley v. State, 807 P.2d at 1095, 1100 (Alaska App. 1991) (finding no  

                                                                                                                                                                         

extraordinary potential  for  rehabilitation "given the  lack of  any psychological  evidence  

                                                                                                                                                          

concerning the etiology of [the defendant's] problems or the chances for their successful  

                                                                                                                                                          

treatment").  



       32  

                                      

             Exemplary , WEBSTER'S  II N                         EW  COLLEGE  DICTIONARY  (3d ed. 2005).                                    



                                                                                 -  15 -                                                                             2683
  


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

                                                                                                                                     

offenders, who generally demonstrate little concern for the well-being of their victims.  



                                                                                                                      

                    In sum, we agree with the sentencing judge that the non-statutory mitigating  



                                                                                                                      

factor of exemplary post-offense conduct was established in this case, and we conclude  



                                                                                                                                     

that   the  three-judge  panel   erred  when  it  rejected  this  non-statutory  mitigator.  



                                                                                                                  

Accordingly, we vacate Olmstead's sentence and  remand this case to the three-judge  



                                                                                                                                     

panel for reconsideration of Olmstead's sentence in light of the non-statutory mitigator.  



                                                                                                                               

In  deciding what  effect,  if  any,  the  non-statutory  mitigating factor  should  have  on  



                                                                                                                          

Olmstead's sentence, the three-judge panel should consider whether the sentence should  



                                                                                                                                

be reduced or  whether Olmstead should be made eligible for discretionary parole or  



                                                                                                                              

some combination of the two.  The three-judge panel may also consider the benefits that  



                                                                                                 

Olmstead has already received by virtue of the plea agreement.  



                                                                                                                              

                    On remand,  Olmstead  is permitted to supplement the record with any  



                                                                                                                             

additional  information  relevant  to  his  sentencing,  including  any  sex  offender  risk  



                                                                                     

assessment that he may have completed in the interim.  



                              

          Conclusion  



                                                                                                                                

                    The  judgment  of  the  superior  court  is  VACATED  and  this  case  is  



                                                                                                                     

REMANDED to the statewide three-judge sentencing panel for proceedings consistent  



                                                    

with the guidance provided here.  



                                                             -  16 -                                                         2683
  

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