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Mark Wayne King v State of Alaska (4/16/2021) ap-2699

Mark Wayne King v State of Alaska (4/16/2021) ap-2699

                                                    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  



MARK WAYNE KING,  

                                                                   Court of Appeals No. A-12489  

                                   Appellant,                    Trial Court No. 3AN-12-9810 CR  



                           v.  

                                                                              O P I N I O N  

STATE OF ALASKA,                                                                                                  



                                   Appellee.                         No. 2699 - April 16, 2021  



                  Appeal  f                             

                              rom  the  Superior   Court,  Third  Judicial  District,  

                                                                       

                  Anchorage, Michael Spaan and Jack W. Smith, Judges.  



                  Appearances:    Rex  Lamont  Butler,  Rex  Lamont  Butler  &  

                                                                                  

                  Associates, Inc., Anchorage, for the Appellant.   Elizabeth T.  

                                                                            

                  Burke, Assistant Attorney General, Office of Criminal Appeals,  

                                                                                               

                  Anchorage, and Jahna Lindemuth, AttorneyGeneral, Juneau, for  

                  the Appellee.  



                  Before:     Allard,     Chief     Judge,     Wollenberg,        Judge,     and  

                                                   

                                                     *  

                  Mannheimer, Senior Judge.   



                  Judge WOLLENBERG, writing for the Court.  

                  Judge MANNHEIMER, concurring.  



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



Constitution and Administrative Rule 23(a).  


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

                    Following a bench trial, Mark Wayne King was convicted of ten counts of  

                                                                                                                                  



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

                                                                                                                                   



minor for sexually abusing his niece between 2009 and 2012.  

                                                                                                



                    On appeal, King raises two challenges to his convictions.   First, King  

                                                                                                                             



argues that the police lacked probable cause to arrest him and that the trial court should  

                                                                                                                           



have  suppressed  his  ensuing  statements  to  the  police.                              Second,  King  argues  that,  

                                                                                                                              



following trial, the trial court made insufficient factual findings to support the imposition  

                                                                                                                     



of separate convictions, and he asks this Court to direct the trial court to revisit this issue.  

                                                                                                                                      



We reject these claims, and we affirm King's convictions.  

                                                                                           



                    King also challenges his sentence.  King was a first felony offender with  

                                                                                              



no significant criminal history.  Because of the nature of his offenses, the number of  

                                                                                                                                  



counts with which he was charged, the applicable presumptive sentencing ranges for  

                                                                                                                                



these  counts,  and  the  statutory  requirement  that  certain  portions  of  each  term  of  

                                                                                                                                 



imprisonment run consecutively, King faced a minimum composite presumptive term of  

                                                                                                                                  



92 years, 6 months, and 2 days to serve.  The judge described this term as "extremely  

                                                                                                                    



severe" and "a little startling," but the court denied King's request to refer his case to the  

                                                                                                                                



three-judge sentencing panel, and the court imposed this 92.5-year minimum sentence.  

                                                                                                                       



                    King raises several challenges to his sentence.  First, King argues that the  

                                                                                                                                



trial court erred in denying his request to refer his case to the three-judge sentencing  

                                                                                                                    



panel.  Second, King contends that his sentence is cruel and unusual punishment within  

                                                                                                                           



the meaning of the Eighth Amendment to the United States Constitution and Article I,  

                                                                  



Section 12 of the Alaska Constitution. And finally, King challenges a special probation  

                                                                                                                      



condition that requires him to submit to a penile plethysmograph assessment at the  

                                                                                                                                



request of his probation officer.  

                                                  



                    We have reviewed the sentencing court's explanation of its decision not to  

                                                                                                                                  



refer King's case to the three-judge sentencing panel, and we have concerns about the  

                                                                                                                                



                                                              - 2 -                                                          2699
  


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

court's reasoning and analysis.                                                                    For this reason, we conclude that we must remand                                                                                          



King's case to the sentencing court so that the court can reassess whether imposition of                                                                                                                                                                      



the minimum presumptive sentence is manifestly unjust and whether the non-statutory                                                                                                                                         



mitigating factor of extraordinary potential for rehabilitation is applicable.                                                                                                                 



                                        Because we are directing the sentencing court to reconsider King's request                                                                                                                             



for a referral to the three-judge sentencing panel, we do not reach the merits of King's                                                                                             



cruel and unusual punishment claim.                                                                               



                                        With regard to King's challenge to the condition of his probation requiring                                                                                                                      



himto submit to plethysmograph testing, the State concedes that the sentencing court did                                                                                                                                                                   



not apply the necessary level of scrutiny to this provision, and this concession is well-  



                           1  

founded.                                                                                                                                                                                                                                               

                                Accordingly, we vacate the portion of Special Probation Condition No. 3 that  



                                                                                                                                                                          2  

                                                                                                                                                                              

                                                                                                                                    

requires King to submit to plethysmograph assessments. 



                                                                                      

                     Underlying facts and proceedings  



                                                                                                                                                            

                                        In September 2012, ten-year-old L.K. watched a personal safety video at  



                                                                                                                                                                                                                                           

her school.  After the video ended, L.K. approached her school counselor and reported  



                                                                                                                                                                                                                                     

that she had been sexually abused by Mark King, her fifty-seven-year-old biological  



                                                                                             

uncle and part-time caretaker.  



                                                                                                                                                                                                                                                             

                                        Anchorage Police Detective Leonard  Torres investigated  the report of  



                                                                                                                                                                                                                                                 

abuse.  When Torres contacted L.K.'s school counselor, the counselor described L.K.'s  



                                                                                                                                                                                                                                     

report to Torres and explained that L.K. was autistic but highly articulate and high- 



           1        See Galindo v. State, 481 P.3d 686, 691 (Alaska App. 2021).  



          2         If   the  State  wishes  to  renew  its  request  for  this  provision  during  the   remand  



proceedings, the sentencing court must subject the provision to special scrutiny - i.e., the  

court must affirmatively consider and have good reason for rejecting any lesser restrictions.                                                                                                                    

See Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995).  



                                                                                                                           - 3 -                                                                                                                      2699
  


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

functioning.  The counselor also stated that L.K. had diagnoses of mood disorder and  

                                                                                                                              



attention deficit hyperactivity disorder (ADHD). The counselor said that the school was  

                                                                                                                              



aware of past instances in which L.K. had lied, but she told Torres that L.K. had never  

                                                                                                                           



lied  about  anything  as  serious  as  sexual  abuse  and  that  L.K.  had  displayed  an  

                                                                                                                               



uncharacteristic level of emotion when she disclosed the abuse.  

                                                                                                   



                    Torres also spoke with L.K.'s father, who informed Torres that he and L.K.  

                                                                                                                             



lived  with  King.            L.K.'s  father  was  unaware  of  L.K.'s  allegations  and  unable  to  

                                                                                                                                



corroborate her assertions.  

                                          



                    L.K.was subsequently interviewed by Torresandothers at AlaskaCARES,  

                                                                                                                       



a child advocacy center.  During those interviews, L.K. reported that King had sexually  

                                                                                                                       



abused her.  L.K. said that King would take L.K. into his room, while wearing nothing  

                                                                                                                        



but his robe, and have her take her clothes off.  L.K. said that King would take off his  

                                                                                  



robe and "play" with her; he would also offer her candy to "play" with him.  

                                                                                                                        



                    L.K. reported that King had touched her vagina, buttocks, and nipples. She  

                                                                                                                               



also described King's acts of oral, anal, and vaginal penetration of her.  

                                                                                                             



                    Torres  obtained  a  search  warrant  for  King's  house.                            When  the  police  

                                                                                                                          



searched King's bedroom, they photographed and seized sexual paraphernalia, a red  

                                                                                                                               



robe, and a bag of candy from King's closet.  The police also seized a second bag of  

                                                                                                                                 



candy from King's bedroom dresser drawer.  

                                                                      



                    Later that day, Torres intercepted King at the airport and transported him  

                                                                                                                              



to the police department.  King was informed of his Miranda rights, and he consented  

                                                                                                                     



to questioning.  During the ensuing interview, King admitted to numerous sexual acts  

                                                                                                                              



with L.K., including penetrating both L.K.'s anus and her vagina with a purple vibrator.  

                                                                                                                                     



In a subsequent search of King's residence, the police found the purple vibrator in King's  

                                                                                                                          



bathroom.  

                  



                                                              - 4 -                                                         2699
  


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

                            Based on his actions between 2009 and 2012, King was indicted on thirteen                                                                



counts of sexual abuse of a minor in the first degree, two counts of sexual abuse of a                                                                                            



minor in the second degree, one count of unlawful exploitation of a minor, and one count                                                                                  



                                                                           3  

of possession of child pornography.                                           



                            King moved to suppress the statements he made during his interview with  

                                                                                                                                                                            



Torres,  arguing  that  the  police  lacked  probable  cause  to  arrest  him  at  the  airport.  

                                                                                                                                                                                       



Superior Court Judge Michael Spaan denied King's motion.  

                                                                                                                               



                            King subsequently waived his right to a jury trial and proceeded to a bench  

                                                                                                                                                                       



trial before Superior Court Judge Jack W. Smith.  King also waived other foundational  

                                                                                                                                                          



rights to which he would otherwise be entitled at a criminal trial.   Most notably, he  

                                                                                                                                                                               



waived his right to cross-examine L.K., saying that he did not want to cause L.K. and  

                                                                                                                                                                             



their family further pain or anguish.  To ensure that L.K. did not have to testify, King  

                                                                                                                                                                          



stipulated to the admission of both L.K.'s interview with the police at Alaska CARES  

                                                                                                                                                                    



and L.K.'s testimony before the grand jury.  In addition, King's attorney only briefly  

                                                                                                                                                                       



cross-examined Detective Torres - the State's sole witness at trial - to clarify details  

                                                                                                                                                                       



about the investigation of the child pornography and exploitation charges. The attorney  

                                                                                                                                                                    



did not present an opening statement or a closing argument to the superior court.  

                                                                                                                                                             



                            Following this limited bench trial, the court found King guilty of ten counts  

                                                                                                                                                                        



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

                                                                                                                                                                                 



a minor. The court acquitted King of three counts of first-degree sexual abuse of a minor  

                                                                                                                                                                        



(based on insufficient evidence of digital-vaginal penetration) as well as the unlawful  

                                                                                                                                                                  



exploitation and possession of child pornography charges.  

                                                                                                                            



       3      AS   11.41.434(a)(1),   AS   11.41.436(a)(2),    AS   11.41.455,   and   AS   11.61.127,  



respectively.  



                                                                                     - 5 -                                                                                 2699
  


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

                                                                                                                                              4  

                      Neither party askedforspecificfindingsunderAlaskaCriminalRule23(c).                                                        



                                                                                                                                                 

(In fact, King's attorney informed the court that he waived specific findings.) However,  



                                                                                                                                           

when the trial court announced its verdict, the court provided a brief explanation of the  



                                                                              

specific evidence underlying each conviction.  



                                                                                                                             

                      Before sentencing, King asked the court to refer his case to the three-judge  



                                                                                                                                          

sentencing panel, arguing that he had an extraordinary potential for rehabilitation and  



                                                                                                                                      

that imposing even the minimum sentence within the presumptive sentencing range  



                                                

would be manifestly unjust.  The trial court denied King's request for the referral, and  



                                                                                                                                   

the court also denied King's separate challenge to his sentence as cruel and unusual  



                                                                                                                          

punishment.  The court imposed a sentence of 92 years, 6 months, and 2 days to serve  



                                                                                                                                                 

(the minimum allowable term of imprisonment), with an additional 15 years suspended.  



                                           

                      This appeal followed.  



                                                                                                                

           King's claim that the police lacked probable cause to arrest him  



                                                                                                                                     

                      After the State indicted King, King filed a motion to suppress. King argued  



                                                                                                                                   

that the police lacked probable cause to arrest him at the airport and that his ensuing  



                                                                                                                                         

statements to the police should be suppressed as the fruit of that unlawful seizure.  The  



                                                                                                                                           

superior  court  denied  King's  motion,  concluding  that  his  arrest  was  supported  by  



                             

probable cause.  



                                                                                                                                      

                      On appeal, King challenges the court's ruling. He argues that L.K.'s report  



                                                                                                                                     

was not credible and that the police did not sufficiently corroborate the details of L.K.'s  



                                                

report before arresting him.  



      4    Alaska Criminal Rule 23(c) provides, in part:  "In a case tried without a jury[,] the   



court shall make a general finding and shall, in addition, on request, find the facts specially."  



                                                                   - 6 -                                                               2699
  


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

                         Probable cause to arrest exists when the "facts and circumstances known                           



to a police officer would justify a [person] of reasonable caution in believing that an                                                                        



offense had been or was being committed and that the person to be arrested is the one                                                                       



                                      5  

                                                                                                                                               

who committed it."                        Probable cause "requires only a fair probability or substantial  



                                                                                                                                                    6  

                                                                                                                                 

chance of criminal activity, not an actual showing that such activity occurred." 



                                                                                                                                               

                         We agree with the trial court that the facts known to the police established  



                                                                                                                                                    

probable cause to arrest King.   As the trial court observed, L.K. provided detailed  



                                                                                                                                           

descriptions of the abuse, descriptions that one would not expect from a ten-year-old  



                                                                                                                                                          

child unless the child had witnessed or experienced the acts described.  The police were  



                                                                                                                                                              

also able to corroborate some aspects of L.K.'s account prior to arresting King -  



                                                                                                                                                                 

including that L.K. lived with King and that King was her caretaker, that King owned a  



                                                                                                                                        7  

                                                                                                                                             

                                                                                                                          

red robe, and that he had candy in his closet and in his bedroom dresser. 



                                                                                                                                                     

                         We reject King's argument that this corroboration was insufficient because  



                                                                                                                                                             

it confirmed only "innocuous" details.   In making this argument, King relies on the  



                                                                                                                               8  

                                                                                                                                                                

stricter corroboration test that we have applied to police informants.                                                            But in the case of  



                                                                                                                                                            

citizen  informants,  only  minimal  corroboration  of  "some  of  the  details"  of  the  



                                                                                                                                                              

informant's report is necessary to establish probable cause; we have not required that the  



      5     Dunn v. State, 653 P.2d 1071, 1077 (Alaska App. 1982) (citing Schmid v. State, 615  



P.2d 565, 574 (Alaska 1980)); see also Erickson v. State, 507 P.2d 508, 517 (Alaska 1973).  

                                                                                        



      6      State v. Joubert, 20 P.3d 1115, 1119 (Alaska 2001).  



      7      See Easton v. City of Boulder, Colo., 776 F.2d 1441 (10th Cir. 1985) (holding that the  



                                                                                                   

inconsistencies in two young children's accusations of sexual abuse did not defeat probable  

                                                                                                                                                             

cause  for  arrest,  where  the  inconsistencies  "[did  not]  undermine  the  solid  core  of  the  

                                                                                                                                    

children's statements," and where probable  cause was based not only on the children's  

                                                                                                                                     

accusations but also on the corroboration of Easton's identityand residencyand the discovery  

of the chair and blanket mentioned by the children).  



      8      See, e.g., Carter v. State, 910 P.2d 619, 624 (Alaska App. 1996).  



                                                                             - 7 -                                                                        2699
  


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

                                                                                                  9  

corroborated facts be independently incriminating.                                                    And as to victim informants, we                           



                                                                                                                                        10  

have left unsettled the question of whether                                     any  corroboration is required.                                      

                                                                                                                                             We therefore  



                                                                                                                                                        

reject King's argument that a heightened level of skepticism - a skepticism usually  



                                                                                                         

reserved for police informants - was required in this case.  



                                                                                                                                                         

                         Accordingly, we conclude that the trial court did not err in denying King's  



                    

motion to suppress.  



                                                                                                                                                    

             King's challenge to the sufficiency of the factual findings supporting his  

                                  

             individual convictions  



                                                                                                                                                   

                          Prior to sentencing, King filed a motion asking the court to make additional  



                                                                                                                                                   

factual findings to explain its verdicts.  King essentially argued that, without additional  



                                                                                                                                                   

clarification,  it  was  possible  that  some  of  the  acts  for  which  King  was  convicted  



                                                                                                                                                                        

constituted the same offense for double jeopardy purposes and therefore should merge.  



                                                                                                                                                               

                          In response to King's motion, the court reviewed its prior findings and  



                                                                                                                                                                 

found that the acts underlying King's convictions occurred on "separate occasions" -  



                                                                                                                                                                        

that  is,  they  were  all  "independent  events  that  .  .  .  occurred  at  different  times."  



                                                                                                                                                               

                          On appeal, King argues that the trial court's factual findings were not  



                                                                                                                                                             

sufficiently specific to rule out the possibility that some of his convictions should have  



      9      See State v. Jones, 706 P.2d 317, 325 (Alaska 1985).  



       10    See Smith v. State, 1998 WL 426553, at *4 (Alaska App. July 29, 1998) (unpublished)                           



(discussing in dicta how "Alaska law is a little unclear on the issue of whether a crime                                                                   

victim's report of a crime needs to be corroborated to satisfy the                                                   Aguilar/Spinelli  test");  see  

also Goulden v. State, 656 P.2d 1218, 1220 (Alaska App. 1983) (internal citations omitted)  

(holding that a warrant based primarily on the alleged victim's testimony in a child abuse                                                       

case was not improper, even though it was double hearsay, because the victim qualified as  

a "citizen informant").  



                                                                              -  8 -                                                                         2699
  


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

merged. King asks us to remand his case to the trial court for a more detailed accounting                                                                                                   



of the factual basis for each conviction.                                                            



                                 But by finding that each of the acts underlying King's convictions occurred                                                                                      



on a separate occasion, the trial court has already resolved the critical issue.                                                                                                           That is, the         



court has already found that no two acts occurred during the same episode, and thus no                                                                                                                           



                                                                                                                                                                              11  

two acts constituted the "same offense" for double jeopardy purposes.                                                                                                                                          

                                                                                                                                                                                    King does not  



                                                                                                                                                                                                  

challenge the trial court's findings or argue that the evidence was insufficient to establish  



                                                                                                                                                  

that the charged conduct occurred on separate occasions.  



                                                                                                                                                                                                              

                                 We further note that the Alaska Supreme Court has now overruled the line  



                                                                                                                                                                                                        

of cases upon which King relied to argue that some of the acts of penetration for which  



                                                                                                                                                                                                                  

he was convicted may have been factually "preparatory and involve the same orifice" as  



                                                                             12  

                                                                                   

                                                          

others, so as to require merger. 



                                                                                                                                                                                                  

                                 We therefore reject King's request to remand his case for further findings.  



                                                               

                King's sentencing proceedings  



                                                                                                                                                                                                        

                                 As we noted earlier, King was convicted often counts of first-degree sexual  



                                                                                                                                                                                      

abuse of a minor.  Because King was a first felony offender, he faced a presumptive  



                                                                                                                                                                        13  

                                                                                                                                                                                                     

sentencing range of 25 to 35 years on each of these convictions.                                                                                                                For the second  



                                                                                                                                                                                                  

through the tenth counts of first-degree sexual abuse of a minor, the court was required  



                                                                                                                                                                                                  

by statute to run at least 7.5 years of each sentence consecutively to the sentence imposed  



         11      U.S. Const. amends. V, XIV; Alaska Const. art. I,  9.  



         12      See State v. Thompson, 435 P.3d 947, 961 (Alaska 2019).  



         13      AS 12.55.125(i)(1)(A)(i).  



                                                                                                     - 9 -                                                                                                 2699
  


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

on the first count.                  14  The trial court was also required to impose at least one additional   



consecutive day of imprisonment for each of King's two second-degree sexual abuse                                                                                        

convictions.15  



                                                                                                                                                               

                            Given these  statutory requirements, King faced a minimum composite  



                                                                                                                                                                             

presumptive term of 92 years, 6 months, and 2 days to serve.  In the absence of any  



                                                                                                                                                                              

statutory mitigating factors, only the statewide three-judge sentencing panel had the  



                                                                                                                                                               

authority to impose a sentence below this presumptive minimum term; the individual  



                                                                                 16  

                                                                                       

sentencing judge lacked this authority. 



                                                                                                                                                                                

                            At the time of sentencing in this case, King was sixty years old. He had no  



                                                                                                                                                                          

prior convictions (other than a self-reported thirty-year-old conviction for driving while  



                                                                                                                                                                               

intoxicated). King also had a long and steady work history: King served in the Navy for  



                                                                                                                                                                                       

seven years before obtaining an associate's degree in computer engineering technology.  



                                                                                                                                                                     

He then worked as a field technician for the Federal Aviation Administration for twenty- 



                                                                                                                                                                               

three years.  King had also voluntarily undergone a sex offender risk assessment by  



                                                                                                                                                                                       

Dr. Bruce Smith, a psychologist whoconcluded that King's risk of re-offending was low.  



                                                                                                                                                                                 

                            Based in part on these circumstances, King's attorney asked the court to  



                                                                                                                                                                              

refer King's case to the statewide three-judge sentencing panel. He argued that King had  



                                                                                                                                                                 

extraordinary potential for rehabilitation and that imposition of the 92.5-year minimum  



       14     Under AS 12.55.127(c)(2)(E), the court was required to run consecutively one-fourth   



of the presumptive term for each additional crime that is first-degree sexual abuse of a minor.                                                                      

Under AS 12.55.127(e)(3), "presumptive term" is defined as "the middle of the applicable  

presumptive range," which in this case was 30 years.  One-fourth of 30 years is 7.5 years.  



       15     AS 12.55.127(c)(2)(F).  



       16  

                                                                                                                       

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

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



                                                                                    -  10 -                                                                                2699
  


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

                                                                                                                                                                                                                                                                                                            17  

presumptive term would be manifestly unjust.                                                                                                                                                                                                                                                                           In his request, King's attorney noted                                                                                                                                                                         



King's lack of criminal history and his lengthy work history.                                                                                                                                                                                                                                                                                                                                           The attorney argued that                                                                                                                 



King had taken responsibility for his conduct and shown remorse.                                                                                                                                                                                                                                                                                                                                                                                      In particular, the                                                                             



 defense attorney urged the court to take account of the fact that King had consented to                                                                                                                                                                                                                                                                                                                                                                                                                                                                    



 a bench trial and had waived his right to confront L.K. in order to avoid causing her                                                                                                                                                                                                                                                                                                                                                                                                                                                              



 further trauma, essentially ensuring his conviction.                                                                                                                                                                                                                                                                                    



                                                                                      King's attorney also relied heavily on the sex offender risk assessment and                                                                                                                                                                                                                                                                                                                                                                                  



psychological   evaluation   conducted   by   Dr.   Smith,   a   forensic   psychologist   with  



 substantial experience treating sex offenders.                                                                                                                                                                                                                                                          King's attorney presented Dr. Smith's                                                                                                                                                                        



report, and later his testimony.                                                                                               



                                                                                      Dr. Smith testified that King's overall risk of re-offending was low and that                                                                                                                                                                                                                                                                                                                                                                                



King had positive prospects for rehabilitation.  Dr. Smith based this conclusion on the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



 series of tests that he administered to King to assess his likelihood of re-offending, as                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



well as the fact that King had recognized his own need for treatment.                                                                                                                                                                                                                                                                                                                                                                                Dr. Smith told the                                                                               



 court that King's risk of re-offending would be further reduced with treatment, and that                                                                                                                                                                                                                                                                                                                                                                                                                                                         



King was "eminently treatable."                                                                                                                                                                                  Dr. Smith acknowledged that, in King's responses to                                                                                                                                                                                                                                                                                        



 one of the risk assessments, King had minimized the seriousness of his behavior, but                                                                                                                                                                                                                                                                                                                                                                                                                                                               



Dr. Smith testified that "this kind of thinking process" was typical for a person who had                                                                                                                                                                                                                                                                                                                                                                                                                                                         



not yet engaged in treatment.                                                                                            



                                                                                      During his allocution to the court, King took responsibility for his conduct                                                                                                                                                                                                                                                                                                                                                     



 and apologized to L.K. and to their family.                                                                                                                                                                                                                                      He said that there was no "possible excuse"                                                                                                                                                                                          



 for his behavior and that L.K. "did not, in any way, deserve what happened to her."                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



                       17                  AS 12.55.165(a); Smith, 711 P.2d at 569-70 (recognizing the non-statutory mitigator   



 of extraordinary potential for rehabilitation).  



                                                                                                                                                                                                                                                                  -  11 -                                                                                                                                                                                                                                                                     2699
  


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

King   reiterated   that   he   was   "ready   and   willing  to  participate"   in   any   treatment  



programming or counseling the court deemed necessary.                                                                               



                                      After considering the testimony, the trial court denied King's request to                                                                                                                                



refer his case to the three-judge panel.  Although the court found that King's potential   



for rehabilitation was "above average," the court concluded that King had not shown by                                                                                                                                                         



clear and convincing evidence that his potential for rehabilitation was "extraordinary."                                                                                                                                                                



And although the court acknowledged that the statutorily required 92.5-year minimum                                                                                                                                       



sentence was "extremely severe" and "a little startling," the court found that imposing  



this 92.5-year minimum sentence was not manifestly unjust.  

                                                                                                                                                                             



                                      The court then imposed a sentence of 92 years, 6 months, and 2 days to                                                                                                                                   



serve (the minimum authorized term of imprisonment), with an additional 15 years                                                                                                                                                      



suspended.  



                    Why we remand this case to the superior court for reconsideration of  

                                                                                                                                                                                                                            

                   King's request for referral to the three-judge sentencing panel  

                                                                                                                                                                                                       



                                      Under AS 12.55.165 and AS 12.55.175, a sentencing judge shall refer a  

                                                                                                                                                                                                                   



defendant's case to the three-judge sentencing panel if one of two circumstances exist:  

                                                                                                                                                                                                                                                        



(1) the judge concludes that imposition of the prescribed presumptive sentence would be  

                                                                                                                                                                                                                                               



manifestly unjust, or (2) thedefendant provesanon-statutory mitigator likeextraordinary  

                                                                                                                                                                                                                



potential for rehabilitation, and the judge concludes that it would be manifestly unjust  

                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                    18  

to fail to consider that non-statutory mitigator in imposing the defendant's sentence.                                                                                                                                                                  

                                                                                                                                                                                                                       



                                                                                                                                                                                                                                       

As we noted earlier, because there were no applicable statutory mitigators in this case,  



                                                                                                                                                                                                                         

the  sentencing  judge  had  no  authority  to  impose  a  sentence  below  the  92.5-year  



          18       See Olmstead v. State, 477 P.3d 656, 661 (Alaska App. 2020) (citing Daniels v. State,  



339 P.3d 1027, 1030 (Alaska App. 2014)); Beltz v. State, 980 P.2d 474, 480-81 (Alaska App.  

 1999).  



                                                                                                                  -  12 -                                                                                                               2699
  


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

presumptive minimum term, and the judge was required to impose this 92.5-year term                                                                   



unless he referred King's case to the three-judge panel.                                                     



                              When a defendant seeks referral of their case to the three-judge panel on                                                                                  



the basis of a non-statutory mitigator like extraordinary potential for rehabilitation, the                                                                                             



                                                                                                                                                                                            19  

 defendant has the burden of proving the mitigator by clear and convincing evidence.                                                                                                            



                                                                                                                                                                                  

 If the mitigator is established, the trial court must refer the defendant's case to the three- 



                                                                                                                                                                                       

judge panel if the court finds that it would be manifestly unjust to fail to adjust the  



                                                                                                                                                                                  20  

                                                                                                                                                             

presumptive range by some amount, however small, to account for the mitigator. 



                                                                                                                                                                        

                              We  have  independently  reviewed  the  sentencing  record,  including  



                                                                                                                                                                                        

 Dr. Smith's report and his later testimony.  As the sentencing judge acknowledged, the  



                                                                                                                                                                       

record shows that King had positive prospects for rehabilitation:  he had no significant  



                                                                                                                                                                    

prior criminal history, psychological testing showed that his overall risk for re-offending  



                                                                                                                                                                                    

was low, and Dr. Smith concluded that the root causes of King's criminal conduct were  



treatable.  



                                                                                                                                                                                         

                              The trial court acknowledged that King had "above average" prospects for  



                                                                                                                                      

rehabilitation.  The court found Dr. Smith's testimony to be "extremely credible," and  



                                                                                                                                                                                         

the court accepted Dr. Smith's conclusion that King's conduct was "unlikely to be  



                          

repeated."  



                                                                                                                                                                    

                              At the same time, however, the court found that King failed to show that  



                                                                                                                                                                                   

his prospects for rehabilitation qualified as "extraordinary."   In particular, the court  



                                                                                                                                                                        

 expressed concern that King had consistently minimized his conduct in his interviews  



                                                                                                                                       

with the police and again in his examination with Dr. Smith.  



        19     AS 12.55.165(a).
  



        20     Kirby v. State, 748 P.2d 757, 765 (Alaska App. 1987).
  



                                                                                         -  13 -                                                                                    2699
  


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

                          But in making this ruling, the sentencing court appeared to believe that                                                                  



King's claim of "extraordinary potential for rehabilitation" required King to present an                                                                                



absolute assurance that he would not re-offend - a standard that no risk assessment                                                                   



                                  21  

                                                                                                                                                         

could ever meet.                         In addition, when the court made its ruling, the court relied on  



                                                                                                                                                                     

generalizationsaboutpersonswho commit child sexualabuse -generalizations that had  



                                                                                                                                                                     

questionable applicability to King, given the record in this case.  The court opined that  



                                                                                                                                                                   

"[t]he problemwith child molesters, much like drug abusers, is sometimes they just can't  



                                                                                                                                                               

control what goes on."   And, in contradiction to the court's earlier statement that it  



                                                                                                                                                                    

accepted Dr. Smith's testimony that King was unlikely to re-offend, the court found that,  



                                                                                                                                              

if King were released, the court "[could not] predict whether he would re-offend."  



                                                                                                                                                                   

                           These comments raise concerns that the court was applying the wrong legal  



                                                                                                                                                         

standard and was relying too heavily on generalized assumptions about sex offenders  



                                                                                                                                                                              

rather than focusing on thespecificcircumstances and evidencepresented in King's case.  



                                                                                                                                                                    

                          As we have explained, King willingly participated in a sex offender risk  



                                                                                                                                                                  

assessment, and he made clear that he would actively participate in treatment. The court  



                                                                                                                                                                      

heard testimony from Dr. Smith that King's likelihood of re-offending was low, and the  



                                                                                                                                                            

court declared that it found Dr. Smith's testimony credible.  Dr. Smith further testified  



                                                                                                                                                                

that King's underlying attraction to his niece stemmed from "intimacy deficits" rather  



                                                                                                                                                                              

than a "fixated, ingrained pattern of deviance," and that King was "eminently treatable."  



                                                                                                                                                                  

Based on this testimony, as well as the other circumstances of King's case, the court  



                                                                                                                                                         

found that King could be rehabilitated within a period of time less than the minimum  



                                                                  

statutorily required term of 92.5 years.  



       21    Id.  at  766  ("We  recognize  that  no  one  can  predict,  with  certainty,  whether  an  



individual will or will not commit future criminal activity.").  



                                                                                -  14 -                                                                           2699
  


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

                        As we said in           Kirby v. State           , "no one can predict, with certainty, whether                   



                                                                                                          22  

an individual will or will not commit future criminal activity."                                                                               

                                                                                                              When a defendant raises  



                                                                                                                                               

the issue of extraordinary potential for rehabilitation, the key question is whether, under  



                                                                                                                                                  

the  totality  of  the  circumstances,  the  defendant  "can  adequately  be  treated  in  the  



                                                                                                                                            

community and need not be incarcerated for the full presumptive termin order to prevent  



                                           23  

                                                                                                                                             

future criminal activity."                      Based on the record of the sentencing proceedings in King's  



                                                                                      

case, it appears that the court failed to apply the proper test in assessing whether King  



                                                        

had extraordinary potential for rehabilitation.  



                                                                                                                                                   

                        That said, it also appears that King may not be eligible for referral to the  



                                                                                                                                                   

three-judge panel based on the non-statutory mitigator of extraordinary potential for  



                                                                                                                                                 

rehabilitation.  The trial court noted that the record (namely, statements made by both  



                                                                                                                                          

L.K. and King, as well as L.K.'s grand jury testimony) indicated that King had engaged  



                                                                                                                    

in other uncharged acts of sexual contact with L.K.  If true, these other uncharged acts  



                                                                                                                                 

would disqualify King fromreferral to thethree-judgepanel on thebasis of extraordinary  



                                               24  

                                                    

potential for rehabilitation. 



      22    Id.  



      23    Id. ; see also O'Connor v. State, 444 P.3d 226, 234 (Alaska App. 2019) (holding that,  



                                                                                                    

in order to find the non-statutory mitigator of extraordinary potential for rehabilitation, "the  

                                                                                                       

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

                                                                                                           

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

the applicable presumptive sentencing range").  



      24  

                                                                                   

            AS 12.55.165(b) (precluding a court from referring a case to the three-judge panel on  

                                                                                               

the basis of a defendant's potential for rehabilitation if the court finds certain aggravating  

factors, including AS 12.55.155(c)(18)(B)); AS 12.55.155(c)(18)(B) (establishing a factor  

                                                                                                       

in aggravation if a defendant is convicted, in relevant part, of first- or second-degree sexual  

                

abuse of a minor and has engaged in the same or other conduct involving the same or another  

victim).  



                                                                       -  15 -                                                                  2699
  


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

                             Although the sentencing court noted this potential disqualifying factor, it                                                                                 



did not deny King's request for referral to the three-judge panel on this ground, because                                                                                  



the parties had not received notice and an opportunity to litigate this issue. For this same                                                                                     



reason, we conclude it would be improper for us to affirm the sentencing court's ruling                                                                                        



                                                    25  

                                                                                                                                                          

on this alternate ground.                                 Accordingly, we conclude that a remand for reconsideration  



                                                                                                                                                      

of the applicability of the non-statutory mitigating factor is required.  



                                                                                                                                                                                 

                             But  even  if  King  may  be  statutorily  barred  from  relying  on  the  non- 



                                                                                                                                                                                  

statutory mitigator of extraordinary potential for rehabilitation, he is not precluded from  



                                                                                                                                                                                    

requesting  referral  to  the  three-judge  panel  based  on  the  manifest  injustice  of  the  



                                       26  

                                                                                                                                                                 

presumptive term.                            We therefore turn to King's claim that the prescribed presumptive  



                                                                                                                           

sentencing range is manifestly unjust as applied to him.  



                                                                                                                                                                                

                             The court's explanation of its rejection of King's manifest injustice claim  



                                                                                                                                                                  

was fairly cursory.   The court noted that L.K. was young, autistic, and particularly  



                                                                                                                                                                                  

vulnerable, and that King had repeatedly abused his niece over a period of more than  



                                                                                                                                                                         

three years.  The court's findings are supported by the record, and the court properly  



                                                                                                                                                                 

took account of these facts in assessing the manifest injustice of the required presumptive  



              

term.  



                                                                                                                                                                                      

                             At  the  same  time,  the  court  described  the  required  92.5-year  term  of  



                                                                                                                                                                           

imprisonment as "extremely severe" and "a little startling when you look at the number  



       25      Cf. Hartley v. State, 653 P.2d 1052, 1056 (Alaska App. 1982) (concluding that "the  



                                                                         

trial court has the power sua sponte to alert the parties to possible aggravating and mitigating  

                                                                                                                                                             

factors present in the record so long as the parties are given an opportunity to marshall the  

relevant evidence, pro and con, and make their arguments accordingly"), abrogated in part  

                                                                                                        

by Blakely v. Washington, 542 U.S. 296 (2004), as recognized in Alexiadis v. State, 355 P.3d  

570, 572 (Alaska App. 2015).  



       26     See State v. Seigle, 394 P.3d 627, 635 (Alaska App. 2017).  



                                                                                       -  16 -                                                                                   2699
  


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

of years involved."                              The court nonetheless found that this "startling" sentence did not                                                                                       



"shock the conscience," given the facts of the case.                                                                           



                                But the court's comments about the facts of King's case in relation to the                                                                                                 



manifest injustice of the presumptive term focused primarily on the circumstances of the                                                                                                                   



abuse itself, with little mention of King's background, his decision not to require his                                                                                                                    



victim   to   testify,   or   Dr.   Smith's   favorable   assessment   of   King's   prospects   for  



rehabilitation.   We are thus unable to determine whether the court conducted the proper                                                                                                           



"totality   of   the   circumstances"   analysis   when   it   assessed   whether   the   required  

presumptive term was manifestly unjust.                                                            27  



                                                                                                                                                                                       

                                When  a  sentencing  court  is  asked  to  evaluate  whether  a  prescribed  



                                                                                                                                                                                                          

presumptive term is manifestly unjust, the court must consider not only whether the  



                                                                                                                                                                                           

defendant's conduct is significantly different from a typical offense within the definition  



                                                                                                                                                                                         

of the defendant's crime, but also whether other circumstances make the defendant  



                                                                                                                                                                 28  

                                                                                                                                                                                                         

                                                                                                                                                                       This includes any  

significantly different from a typical offender within that category. 



                                                                                                                                                                                                         

facts related to proposed statutory or non-statutory mitigating factors, even if there was  



                                                                                                                                                                        29  

                                                                                                                                              

not enough evidence for the court to separately find those mitigators.                                                                                                         



                                                                                                                                                                                                        

                                We  agree  with  the  sentencing  court  that  King's  conduct  was  not  



                                                                                                                                                                                                     

significantly mitigated when compared to the typical offense of first-degree sexual abuse  



                                                                                                                                                                                                                    

of a minor.  But there were several factors that set King apart from a typical offender.  



                                                                                                                                                                                                            

First is the unusual procedural background of King's case. Although King elected to go  



                                                                                                                                                                                                         

to trial, he affirmatively waived many of the bedrock procedural rights to which he was  



        27      See Duncan v. State                             , 782 P.2d 301, 304 (Alaska App. 1989) ("[I]n order to decide  



whether the presumptive term would be manifestlyunjust, the court must consider the totality                         

of the circumstances surrounding the case.").  



        28      See Beltz v. State, 980 P.2d 474, 480 (Alaska App. 1999); Duncan, 782 P.2d at 304.  

                                                           



        29      Seigle, 394 P.3d at 636-37 (discussing Duncan, 782 P.2d at 303-04).  



                                                                                                  -  17 -                                                                                             2699
  


----------------------- Page 18-----------------------

 entitled as a criminal defendant. Most critically, King waived his right to cross-examine                                                                                                                                                                                                                         



 L.K., stating that he wished to avoid causing further pain for L.K. and their family.                                                                                                                                                                                                                                                                           He  



 expressly agreed to the admission of L.K.'s Alaska CARES interview and L.K.'s grand                                                                                                                                                                                                                                                                    



jury   testimony   (evidence   which   otherwise   would   have   been  subject   to   hearsay  



 objections), so that L.K. would not have to appear in court and take the stand.                                                                                                                                                                                                                                                                       King  



 agreed to a bench trial, and his attorney did not give an opening statement or a closing                                                                                                                                                                                                                                                   



 argument to the judge. In addition, King's attorney did not substantively cross-examine                                                                                                                                                                                                                           



 Detective Torres, the State's sole witness.                                                                                                    



                                                          In other words, King essentially waived his right to challenge the State's                                                                                                                                                   



 case or to put on his own case.                                                                                                               As a practical matter, King's decisions essentially                                                                                                                                



 resulted in a "slow plea" to the charges.                                                                                                                                      The record is clear that he took these steps                                                                                                                              



 because he wanted to avoid any further trauma to L.K. and their family.                                                                                                                                                                                                                                                          King also   



 expressed significant remorse at sentencing, he willingly participated in a sex offender                                                                                                                                                                                                                                                   



 risk assessment, and he made clear that he would actively participate in sex offender                                                                                                                                                                                                                                  



 treatment.   



                                                          The sentencing court was required to consider these circumstances when                                                                                                                                                         



 assessing whether theprescribed                                                                                                          presumptivesentencewould bemanifestly unjust under                                                                                                                                                            



 the facts of King's case.                                                                               As we said in                                                 State v. Seigle                                                :  



                                                          Because    the    sentencing    court    is    required    to    base    its  

                                                          conclusion regarding manifest injustice on the totality of the                                                                                                                                                                                  

                                                          circumstances (  i.e., the facts of the current criminal episode,                                                                                                                                                         

                                                         plus    the    history    and    underlying    circumstances    of    the  

                                                          offender),   the   sentencing   court's   assessment   will   often  

                                                          include    circumstances    that,    standing    alone,    would    be  

                                                          insufficient   to   warrant   a   departure   from   the   applicable  

                                                         presumptive sentencing range.                                                                                                      [30]  



               30            Id. at 635.  



                                                                                                                                                                            -  18 -                                                                                                                                                                          2699
  


----------------------- Page 19-----------------------

The court was likewise required to consider King's prospects for rehabilitation as part                                                           



of the totality of circumstances, regardless of whether these prospects independently                                                    



                                                                                                                                                                                       31  

established the non-statutory mitigator of extraordinary potential for rehabilitation.                                                                                                        



                                                                                                                                                                           

                             Havingindependentlyreviewedthesentencingrecord, wearenot confident  



                                                                                                                                                                                   

that the sentencing court engaged in the type of thorough review that is required under  



                                                                                                                                                                                     

the totality of circumstances test to assess whether King was significantly different from  



                                                                                                                                                                                        

the typical offender.   We therefore  conclude that we must remand this case to the  



                                                                                                                                                                                            

sentencing court for a further evaluation of whether referral to the three-judge panel is  



                                                           

warranted on this ground.  



                                                                                                                                                                                

                             Because we are remanding King's case for reconsideration of his request  



                                                                                                                                                                                      

for referral to the three-judge panel, we need not address King's argument that his term  



                                                                                                                                     

of imprisonment constitutes cruel and unusual punishment.  



               Conclusion  



                             We AFFIRM King's convictions.  We REMAND this case to the superior  

                                                                                                                                                                              



court for reconsiderationofwhether themandated 92.5-year compositepresumptiveterm  

                                                                                                                                                                                      



of imprisonment is manifestly unjust as applied to King and reconsideration of the non- 

                                                                                                                                                                                     



statutory mitigating factor of extraordinary potential for rehabilitation.  The court may  

                                                                                                                                                                                      



hold additional proceedings to consider this question. The superior court shall notify this  

                                                                                                                                                                                        



Court of its decision within 120 days of the issuance of this opinion. (The superior court  

                                                                                                                                                                                    



may extend this deadline for good cause, conditioned upon a status report to this Court.)  

                                                                                                                                                                                                  



       31      Id.  at 637-38 (concluding that a defendant's prospects for rehabilitation should be  



considered  as  part  of  the  totality of  the  circumstances  required  by a  manifest  injustice  

                                                                                                                                                    

analysis).  



                                                                                         -  19 -                                                                                     2699
  


----------------------- Page 20-----------------------

                    Additionally,  we  VACATE  the  plethysmograph  provision  in  Special  

                                                                                                                        



Probation Condition No. 3.  If the State renews its request for this condition, the court  



must subject the provision to special scrutiny.  

                                                                        



                    If the superior court again declines to refer King's case to the three-judge  

                                                                                                                   



panel, and if King wishes to challenge the superior court's decision, he shall file a notice  

                                                                                                                           



in this Court within thirty days of the distribution of the superior court's decision.  

                                                                                                                               



                    If the superior court refers King's case to the three-judge sentencing panel,  

                                                                                                                           



King shall have thirty days from the date of distribution of the three-judge panel's  

                                                                                                                         



decision to notify this Court if he intends to appeal that decision.  

                                                                                      



                    If King files notice of his intent to appeal, a supplemental record will be  

                                                                                                                                



prepared, and briefing will proceed as provided in the Appellate Rules.  

                                                                                                   



                    We retain jurisdiction of this case.  

                                                                  



                                                             - 20 -                                                         2699
  


----------------------- Page 21-----------------------

Judge MANNHEIMER, concurring.  

                                                          



                    I agree with my colleagues that there is no merit to King's suppression  

                                                                                                                   



argument, nor is there any merit to King's claim that the trial judge made insufficient  

                                                                                                                   



findings to support the imposition of separate convictions on King's various counts of  

                                                                                                                       



sexual abuse of a minor.  

                                       



                    I think there may be some merit to King's claim that he has extraordinary  

                                                                                                                



potential for rehabilitation compared to the typical sexual abuse offender, but I conclude  

                                                                                                                       



that it is pointless to remand King's case to the superior court for reconsideration of this  

                                                                                                                                



claim, because the record demonstrates that King engaged in additional uncharged acts  

                                                                                                                               



of sexual abuse - thus disqualifying him from referral to the three-judge sentencing  

                                                                                                                    



panel even  if he proved  that he had  extraordinary  potential for  rehabilitation.                                           See  

                                                                                                                                



AS 12.55.165(b) and AS 12.55.155(c)(18)(B).  

                                                                          



                    However,  King  could  still  seek  referral  to  the  three-judge  panel  (and  

                                                                                                                   



potential reduction of his sentence) on the basis that the minimum sentence required by  

                                                                                                                                 



our sentencing statutes is manifestly unjust.  See AS 12.55.165(a).  And on this point,  

                                                                                                                            



I believe that King's case illustrates a significant problem in our state's sentencing law.  

                                                                                                                                      



This problem arises from the combined effect of three aspects of our law:   (1)  the  

                                                                                                                         



definition  of  what  constitutes  a  separately  chargeable  sexual  offense,  (2)  the  near- 

                                                                                                                             



absolute authority of the executive branch to decide how many of these potential charges  

                                                                                                                          



to bring against a particular defendant, and (3) the statutory requirement of consecutive  

                                                                                                                   



sentencing for each individual conviction.  

                                                                   



                                                             - 21 -                                                          2699
  


----------------------- Page 22-----------------------

                                               Our supreme court has held that, under our sexual abuse                                                                                                                                       of aminor statutes,                  



each instance of sexual penetration constitutes a separately punishable offense, even                                                                                                                                                                                                        



                                                                                                                                                                                                                                                                                                               1  

when those acts of sexual penetration occur during the same episode of sexual abuse.                                                                                                                                                                                                                              



                                                                                                                                                                                                                                                                               

                                               Most of this Court's prior sexual abuse of a minor cases have involved  



                                                                                                                                                                                                                                                                                       

defendants who had continuous or repeated private access to their victims - family  



                                                                                                                                                                                                                                                                                                      

members,  trusted  family  friends,  or  adults  in  a  position  of  authority  as  defined  in  



                                                                                   

AS 11.41.470(5).  And because of these defendants' access to their victims, almost all  



                                                                                                                                                                                                                                                                               

of these sexual abuse cases involved multiple, separately chargeable acts of unlawful  



                                           2  

penetration.    



            1          State v. Thompson, 435 P.3d 947, 961 (Alaska 2019).  



            2          See, e.g., Evans v. State, unpublished, 2017 WL 3662457 (Alaska App. 2017) (The   



defendant was originally charged with seven counts of first-degree sexual abuse of a minor,                                                                                                                                                                                        

but the evidence indicated that he could have been charged with many more counts, because   

he had sexual intercourse with his fifteen-year-old stepdaughter every week or two until she   

was seventeen.  The defendant pleaded guilty to one consolidated count, and he received a  

sentence of 30 years to serve.);                                                                             Turney v. State, unpublished, 2017 WL 2492487 (Alaska  

App. 2017) (The defendant was originally charged with twenty counts of first-degree sexual                                                                                                                                                       

abuse of a minor and first-degree sexual assault for sexually abusing his stepdaughter on                                                                                                                       

almost a daily basis from the time she was eleven years old until she was close to eighteen.     

He ultimately agreed to be found guilty of three counts (one count of first-degree sexual                                                                                                                                                      

abuse of a minor, and two more consolidated counts of first-degree sexual abuse of a minor                                                                                                                                                                                           

and first-degree sexual assault), and he received a sentence of 41 years to serve.);                                                                                                                                                                                               Argueta  

v. State, unpublished, 2017 WL 1968279 (Alaska App. 2017) (The defendant was originally  

charged with two counts of first-degree sexual abuse of a minor and two counts of second-                                                                                                                                                                                            

degree sexual abuse of a minor, based on numerous acts of sexual penetration and sexual                                                                                                                   

contact with his eleven-year-old stepsister over the course of a year. He pleaded guilty to one                                                                                                                                                                                            

consolidated count of attempted first-degree sexual abuse of a minor, and he received a                                                                                                                          

sentence of 22 years to serve.).   



                                                                                                                                             - 22 -                                                                                                                                           2699
  


----------------------- Page 23-----------------------

                       Under our law, the State has essentially absolute control over whether to                                                    



                                                                                                                                                     3  

charge any and all of these potential counts of first-degree sexual abuse of a minor.                                                                    



                                                                                                                                                   

And  because  each  additional  count  triggers  a  mandatory  consecutive  sentence  of  



                                                                                                                                     

imprisonment under AS 12.55.127(c)(2)(E), prosecutors are able to exercise substantial  



                                                                                                                                                

control over a defendant's sentence.  In many instances - as illustrated by King's case  



                                                                                                                             

- the prosecutor's control over a defendant's sentence is all but total.  



                                                                                                                       

                       In King's case, the State elected to charge King with thirteen individual  



                                                                                                                                               

counts of first-degree sexual abuse of a minor, and King was found guilty of ten of these  



                                                                                                                                                    

counts.  These ten individual convictions meant that the superior court was required to  



                                                                                                                                      

impose a minimum composite sentence of more than 90 years' imprisonment, regardless  



                                                                                                                                           

of how the sentencing judge viewed King's actions, King's background, and King's  



                                                   

prospects for rehabilitation.  



                                                                                                                                                     

                       Moreover, under Alaska's parole statutes, when a defendant receives a  



                                                                                                                                            

presumptive term of imprisonment for one count of first-degree sexual abuse of a minor,  



                                                                                                                                             

plus  one  or  more  additional  mandatory  consecutive  terms  of  imprisonment  under  



                                                                                                                                                     

AS 12.55.127 for other counts of first-degree sexual abuse of a minor, the defendant is  



                                                                                                                                                         

not eligible for discretionary parole until they have served the entire mandatory total.  



                                                                                                     4  

                                                                                                                                   

See  AS 33.16.090(a)(1)(D) and AS 33.16.090(b)(6)(A).                                                     And because first-degree  



                                                                                                                                                     5  

                                                                                                                                            

sexual abuse of a minor is an unclassified sexual felony under our sentencing laws, 



                                                                                                                                                  

defendants sentenced for this crime are not eligible for good time credit - i.e., not  



      3     See State v. Carlson             , 555 P.2d 269, 271-72 (Alaska 1976); Public Defender Agency  



v. Superior Court, 534 P.2d 947, 950-51 (Alaska 1975); State v. District Court, 53 P.3d 629,  

631, 633 (Alaska App. 2002).  



      4     At the time of King's offenses, the corresponding discretionaryparole provisions were  

                                                                                                                   

AS 33.16.090(b)(2) and AS 33.16.090(b)(7)(A).  



      5     AS 11.41.434(b).  



                                                                      - 23 -                                                                   2699
  


----------------------- Page 24-----------------------

eligible for release on mandatory parole based on good behavior after serving two-thirds                                              



                                                                                 6  

of their sentence.              See  AS 33.20.010(a)(3)(B).                         



                                                                                                                                             

                       Thus, when a defendant convicted of first-degree sexual abuse of a minor  



                                                                                      

receives a mandatory composite sentence of 70, 80, or 90 years' imprisonment, this is  



                                                                                                                                          

in fact a life sentence - a life sentence that is dictated, not by a sentencing judge's  



                                                                                                                                         

analysisofwhat justicerequires, but instead purely by theprosecutor's charging decision  



                                                                                                                                                  

and  the jurors'  verdicts (jurors who,  under  our  law,  are forbidden  from taking  the  



                                                                              7  

                                                                                 

defendant's punishment into consideration).  



                                                                                                                                                    

                       No  reasonable  person  disputes  that  sexual  abuse  of  children  is  a  



                                                                                                                                                    

condemnable crime - a crime that can leave lasting physical and mental injuries on its  



                                                                                                                                                  

victims.  Under our law, the legislature is the branch of government entrusted with the  



                                                                                                                     8  

                                                                                                                                      

                                                                                                                       and the legislature  

authority to determine the proper punishment for a particular crime, 



                                                                                                         9  

                                                                                                             

has enacted severe penalties for the sexual abuse of minors.  



                                                                                                                                 

                       But in some cases, these severe penalties, coupled with a prosecutor's  



                                                                                                                                                  

unfettered charging discretion and our law's requirement of consecutive sentencing, can  



                                                                                                                                    

lead to mandatory sentences of imprisonment that are decades longer than reasonably  



                                                                                                                           

necessary to satisfy the goals of sentencing codified in AS 12.55.005.  



      6     The Alaska legislature did not eliminate good time credit for sexual felonies until July  



2013, after King committed his crimes.  See SLA 2013, ch. 43,  33 and 46(a).  Thus, King  

                                                                                                                                     

himself is eligible for good time credit - but, since July 2013, defendants in his situation  

                                                                                                 

have not been eligible for good time credit.  



      7     See, e.g., Martin v. State , 664 P.2d 612, 619 (Alaska App. 1983); Alaska Criminal  

                                                                        

Pattern Jury Instruction No. 1.49.  



      8     See Thessen v. State, 508 P.2d 1192, 1197 (Alaska 1973) (overruled on other grounds  

                   

by State v. Dunlop, 721 P.2d 604, 609 (Alaska 1986)); Nell v. State, 642 P.2d 1361, 1368-69  

      

(Alaska App. 1982).  



      9     See AS 12.55.125(i).  



                                                                      - 24 -                                                                   2699
  


----------------------- Page 25-----------------------

                    Perhaps for this reason, when a prosecution for sexual abuse of a minor  

                                                                                                                           



involves a multitude of separate counts, the case is normally resolved with a plea bargain  

                                                                                                                         



in which the State drops some of the charges or consolidates the charges into one or more  

                                                                                                                            



representative  counts.              See,  for  example,  the  cases  described  in  footnote  2  of  this  

                                                                                                                              



concurrence.  

                       



                    But when, in cases like King's, the government pursues all of the charges  

                                                                                                                        



to trial and secures convictions on a multitude of counts, sentencing judges must be  

                                                                                                                                



particularly vigilant to make sure that the defendant's total sentence does not become  

                                                                                                                        



manifestly   unjust   (as  that   concept   has   been   defined   in   our   cases   construing  

                                                                                                                  



AS 12.55.165).  

                          



                    I believe that King's case represents an instance where the mandatory  

                                                                                                                   



minimum composite sentence is manifestly unjust.  

                                                                                



                    I acknowledge that King engaged in a lengthy and reprehensible sexual  

                                                                                                                          



abuse of his niece - a girl who, because of her youth and her autism, was particularly  

                                                                                                                  



vulnerable and unable to fully grasp what was happening to her.   But King had no  

                                                                                                                                



criminal record, and he was remorseful for what he had done.  Psychological testing  

                                                                                                                          



showed that, with proper treatment and supervision, King was unlikely to re-offend.  

                                                                                                                                     



And King essentially did everything, short of pleading guilty, to ensure that he would be  

                                                                                                                                 



convicted.  

                  



                    King stipulated to the admission of most of the evidence against him (thus  

                                                                                                                            



ensuring that his victim would not be required to testify), he refrained from substantively  

                                                                                                                



cross-examining the State's sole live witness at the trial (the detective who investigated  

                                                                                                                  



the case), and he presented no closing argument to the superior court at the end of his  

                                                                                                                                



trial.  In sum, as Judge Wollenberg notes in her lead opinion, King's litigation strategy  

                                                                                                                        



amounted to a type of "slow plea".  

                                                        



                                                             - 25 -                                                         2699
  


----------------------- Page 26-----------------------

                    But because King did not reach a plea bargain with the State, his case did  

                                                                                                                              



not end in the typical manner.  Instead of being found guilty of one or a few representa- 

                                                                                                                  



tive counts (or consolidated counts), King was convicted of ten counts of first-degree  

                                                                                                                 



sexual abuse of a minor - and, as a result, Alaska's sentencing  laws  called for a  

                                                                                                                                 



mandatory minimum composite sentence exceeding 90 years.  

                                                                                               



                    King's case illustrates how three components of Alaska law - each of  

                                                                                                                                



them salutary when considered separately - can combine on occasion to produce an  

                                                                                                                               



unjust  result.         I  therefore  agree  with  my  colleagues  that  the  superior  court  must  

                                                                                                                 



reconsider King's request for referral of his case to the three-judge sentencing panel.  

                                                                                                                                  



                                                            - 26 -                                                         2699
  

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