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State v. Hodari (3/3/00) sp-5243
State v. Hodari (3/3/00) sp-5243
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are requested to
bring errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-
0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-8569
Petitioner, ) Court of Appeals No. A-6470
) Superior Court No.
v. ) 3AN-S95-2525 CR
)
SABABU HODARI, ) O P I N I O N
)
Respondent. ) [No. 5243 - March 3, 2000]
______________________________)
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal from the Superior
Court, Third Judicial District, Anchorage,
Elaine M. Andrews, Judge.
Appearances: W.H. Hawley, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General,
Juneau, for Petitioner. James Wendt, Anchorage, for Respondent.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Sababu O. Hodari was convicted of two counts of sexual
assault in the first degree and one count each of robbery in the
first degree and assault in the second degree. The trial court
sentenced him to a composite sentence of fifty-five years to
serve. Hodari appealed his sentence as excessive and the court
of appeals remanded his case to the trial court to impose a
sentence not to exceed forty years to serve. [Fn. 1] The state
petitioned and we granted review. Because the trial court's
original sentence was not clearly mistaken, we reverse the court
of appeals.
II. FACTS AND PROCEEDINGS
In the early morning of April 12, 1995, Hodari and
three accomplices forced their way into a home in search of
money. While there they committed a number of crimes: the four
men raped and brutalized the mother, raped and brutalized her
eighteen-year-old daughter who was eight and one-half months
pregnant, and beat her fourteen-year old son and forced him to
watch the atrocities committed against his mother and sister. In
addition to being repeatedly raped, both the mother and daughter
were made to perform fellatio on the intruders and each had a
pistol forced into her vagina. Hodari forced a pistol into the
pregnant daughter's vagina and he threatened to shoot the unborn
child.
The four intruders took more than $7,000 in cash,
jewelry valued at over $10,000, a stereo, and car tire rims. The
interior of the house was left looking "like a tornado had hit
it," with broken furniture strewn about and blood splattered on
the walls.
In his twenty-three years Hodari had committed a long
list of crimes. Prior to these acts Hodari had a "significant
juvenile record" with the offenses including theft, burglary, and
assault. As an adult he had two felony convictions for
misconduct involving a controlled substance and numerous
misdemeanor convictions, including misconduct involving a
controlled substance and assault. However, because Hodari had
not been sentenced on the second felony when he attacked the
family, he was considered a second felony offender for
presumptive sentencing purposes. [Fn. 2]
Hodari had a "terrible record on probation," with
numerous misdemeanor convictions while on probation, and he
committed the present offenses while on probation. [Fn. 3] The
trial court concluded, and the court of appeals agreed, that
"it's pretty clear [Hodari is] not going to do anything he
doesn't want to do, probation or no probation, parole or no
parole, court orders or no court orders." [Fn. 4] Hodari had
continued his refusal to abide by any rules by accumulating a
remarkable record of non-compliance with prison regulations. [Fn.
5]
Hodari pled nolo contendere to two counts of sexual
assault in the first degree, an unclassified felony, [Fn. 6] and
one count each of robbery in the first degree, a class A felony,
[Fn. 7] and assault in the second degree, a class B felony. [Fn.
8]
Judge Elaine Andrews sentenced Hodari to a fifty-five
year composite sentence comprised of: (1) twenty-five years for
each count of sexual assault in the first degree, with the terms
to run consecutively; (2) fifteen years for robbery in the first
degree, with the term to run concurrently; (3) five years for
assault in the second degree, with the term to run consecutively.
Hodari appealed his sentence as excessive. The court
of appeals agreed and remanded the case to the trial court with
directions to impose a sentence not to exceed forty years of
imprisonment. The court reasoned that relative to other similar
cases "[h]is case fits within the cases where offenders have
received a maximum sentence of forty years of imprisonment. We
therefore conclude that a sentence of greater than forty years of
imprisonment is excessive." [Fn. 9]
We granted the state's petition for hearing.
III. DISCUSSION
A. Standard of Review
"Clearly mistaken" is the standard of review that we
employ when reviewing sentencing decisions of a trial court. [Fn.
10] Likewise it is the standard of review that the court of
appeals employs when it reviews a trial court's sentencing
decision. [Fn. 11] Accordingly, we give no deference to the
court of appeals's conclusions when we grant a petition for
review.
While we utilize the "clearly mistaken" standard of
review, that standard should not be confused with the "abuse of
discretion" standard. As we said in McClain v. State, [Fn. 12]
in describing the "clearly mistaken" and "zone of reasonableness"
tests and distinguishing them from the "abuse of discretion"
standard:
Implementation of these two formulations
["clearly mistaken" and "zone of reasonableness"] reveals a
similar analytical framework which accounts for their combined
use in some cases. Analytically, the clearly mistaken test
implies a permissible range of reasonable sentences which a
reviewing court, after an independent review of the record, will
not modify. The zone of reasonableness merely describes that
range of reasonable sentences which after an independent review
of the record will not be modified by the reviewing court.
The type of analysis involved in both of
these formulations should not be confused with the abuse of
discretion test. In the abuse of discretion test the reviewing
court will sustain the lower court's sentence merely if some of
the evidence supports the sentencing court's determination. An
independent examination of the entire record is not a part of
this test. Because of the limited review inherent in the abuse
of discretion test, this court in Galaktionoff v. State, 486 P.2d
919, 923 (Alaska 1971), rejected its application to sentence
appeals. [Fn. 13]
The court of appeals has correctly analyzed the
"clearly mistaken" standard and determined that it is a
deferential standard of review:
[I]t gives considerable leeway to individual
sentencing judges. The "clearly mistaken" test is founded on two
concepts: first, that reasonable judges, confronted with
identical facts, can and will differ on what constitutes an
appropriate sentence; second, that society is willing to accept
these sentencing discrepancies, so long as a judge's sentencing
decision falls within "a permissible range of reasonable
sentences." [Fn. 14]
We stated in State v. Wentz [Fn. 15] that "[t]his
'range of reasonableness,' . . . should be determined not by
imposition of an artificial ceiling which limits a large class of
offenses to the lower end of the sentencing spectrum, but,
rather, by an examination of the particular facts of the
individual case in light of the total range of sentences
authorized by the legislature for the particular offense." [Fn.
16]
B. Was the Sentence Imposed by the Superior Court Clearly
Mistaken?
1. Statutory law
a. Authorized sentences
The maximum sentences for Hodari's crimes are as
follows: (1) thirty years for each count of first degree sexual
assault, or a total of sixty years; [Fn. 17] (2) twenty years for
one count of first degree robbery; [Fn. 18] (3) ten years for one
count of second degree assault. [Fn. 19] In sum, the maximum
Hodari could have been sentenced to is ninety years.
Alaska utilizes "presumptive sentencing." [Fn. 20] The
presumptive terms set out in the statute establish the
appropriate sentence in most cases. [Fn. 21] The legislature has
said that "[a] presumptive sentence is a legislative
determination of the term of imprisonment the average defendant
convicted of an offense should be sentenced to, absent the
presence of legislatively prescribed factors in aggravation or
mitigation or extraordinary circumstances." [Fn. 22]
Since Hodari had a prior felony conviction, his
presumptive sentence is as follows: (1) fifteen years for the
first count of first degree sexual assault, with at least some
portion of an additional fifteen-year sentence for the second
count to be consecutive; [Fn. 23] (2) at least some part of ten
years for one count of first degree robbery to be consecutive;
[Fn. 24] and (3) at least some part of four years for one count
of second degree assault to be consecutive. [Fn. 25] In sum,
under presumptive sentencing, without accounting for aggravating
factors, Hodari theoretically could have received a sentence of
up to forty-four years. Because Hodari's crimes included first
degree sexual assault and first degree robbery, there is a
"preference" for consecutive rather than concurrent sentences.
[Fn. 26]
b. Aggravating factors
A court may increase or decrease a presumptive sentence
if there are mitigating or aggravating factors. [Fn. 27] Judge
Andrews found that the following aggravating factors [Fn. 28]
were proven:
1. Hodari's crime falls within the "most serious
conduct" category. [Fn. 29]
2. He committed multiple acts on multiple victims. [Fn.
30]
3. He was the leader of a group of three or more
persons who participated in the offense. [Fn. 31]
4. The crimes were accompanied by exceptional
gratuitous violence. [Fn. 32]
5. His victims were very vulnerable. [Fn. 33]
6. He had numerous misdemeanor convictions as an adult.
[Fn. 34]
7. He forced entry into a home in the middle of the
night. [Fn. 35]
8. He had a "terrible record on probation" with
probation revocations and dirty urine analyses.
9. He actually had committed two felonies prior to this
crime, but since he had not been convicted of the second felony
before this crime it could not be considered for presumptive
sentencing purposes.
10. He had a "significant juvenile record."
11. He had no verifiable employment and a "miserable
work history."
12. He had received no alcohol or drug treatment.
13. He had a poor record while incarcerated.
As a result of the number and quality of the
aggravators established by the evidence, as well as the facts of
the crimes themselves, Judge Andrews found Hodari's record
qualified him as a "dangerous offender." Judge Andrews's
assessment of his extreme dangerousness is evidenced by the
court's remark: "this court's sentence will not put Mr. Hodari
under correctional supervision for the rest of his life because I
can't do it because it's not authorized."
2. Case law
In Williams v. State [Fn. 36] (Williams I) the court of
appeals established "benchmarks" for sentencing in sexual assault
and kidnapping [Fn. 37] cases. The court of appeals created
three sentencing benchmark categories: the first category for
first offenders, the second for defendants with at least one
felony conviction but with insufficient criminal history to be
considered "dangerous offenders," and the third for "cases [that]
involved kidnapping of prolonged duration or offenders whose
prior criminal histories established them as persistent, violent
criminals." [Fn. 38] These categories were created to promote
the twin sentencing goals of uniformity of sentencing and the
elimination of unjustified disparity. [Fn. 39] In creating the
benchmarks the court looked to the "sentences received by
similarly situated offenders for similar misconduct." [Fn. 40]
On review, we remanded the case to the court of appeals
for reconsideration in light of our opinion in State v. Wentz.
[Fn. 41] In Wentz, we emphasized the individualized nature of
sentencing and the difficulties inherent in rigid sentencing
categories. We recognized that the range of potential sentences
between the maximum sentence provided by the law and the
presumptive sentence was "wide." [Fn. 42] We noted that "[t]hose
in the upper end of the spectrum should, of course, be reserved
for more serious offenses and offenders, while those in the lower
end are appropriate for less grave criminal offenders and
criminal conduct." [Fn. 43] We then expressed our reservations
about rigid benchmarks:
Whether a particular offense is
sufficiently serious to justify placing it in the upper rather
than lower end of the sentencing range, however, cannot be
determined with mathematical certainty. Such questions are not
easily resolved by resort to "bright line" rules or
pronouncements concerning the "correct" sentence to be applied
under varying factual circumstances. For example, it cannot be
stated categorically that a felony assault committed by an
offender with a long string of prior misdemeanor assaults is
necessarily less serious than a felony assault committed by an
offender with a single prior felony conviction. Such questions
must be answered by reference to the particular facts of the
individual case, and are therefore matters properly left to the
sound discretion of the sentencing judge. [Fn. 44]
On remand, the court of appeals in Williams II
clarified its intended use of benchmarks in sentence review:
Our benchmarks in Williams [I] and other
cases are not intended to be inflexible rules confining the
permissible range of sentencing in a given case; rather, they are
meant to act as historically-based starting points for
individualized analysis in each case: . . .
[W]e have never attempted to create
sentencing benchmarks based on our abstract notions of what a
typical sentence for a given offense ought to be. [Fn. 45]
The court of appeals's clarification was well-taken,
given this court's explicit reliance in Wentz on scholarly
commentary which exposed the danger of over-reliance on appellate
review of sentences to establish rigid sentencing parameters for
trial courts:
There are drawbacks . . . to relying too
heavily on appellate review to articulate sentencing principles
and to fine-tune sentences. Appellate review by its very nature
is backward-looking. It is the proper role of the appellate
court to examine what has occurred in a specific case, and to
pass on the propriety of the result in that case only. It is
generally accepted that an appellate court is effective only when
it decides cases based on the factual record before it and only
after the record in that case has been completely developed. As
a rule, it cannot and should not anticipate what other factual
situations might arise in the future, nor should it fashion rules
prospectively. [Fn. 46]
Accordingly, the court of appeals in Williams II made
clear that the proper use of benchmarks was as "starting points"
in the appellate review of sentences, not as "hard and fast
limits," nor as rigid rules which "can only be deviated from when
certain specific, limited exceptions are established." [Fn. 47]
3. The court of appeals misapplied controlling law.
The court of appeals acknowledged that Judge Andrews
had identified multiple factors which distinguished Hodari's
situation from Williams's:
Judge Andrews gave several reasons why
she found that the facts of Hodari's case deserved a more severe
sentence than the sentence which Williams received. She found
that Hodari was a leader of the group. He had been the
instigator of the offense and had directed the others during the
offense. Williams had acted alone. She noted that Hodari had
committed a burglary by forcibly entering a home in the middle of
the night; Williams had not committed a burglary. Hodari,
unlike Williams, used a weapon. She found that the facts of the
kidnapping offense in both cases were similar. Hodari had
committed a technical kidnapping and Williams had committed a
minimal kidnapping offense. She found that Hodari had engaged in
"exceptional gratuitous violence" to the victims and their
property; Williams had not engaged in gratuitous violence. She
found that Hodari had a more serious criminal record than
Williams. She found that Hodari, unlike Williams, was a
"dangerous offender". . . . [Fn. 48]
Moreover, the court of appeals found persuasive the trial court's
analysis "that Hodari's case is more aggravated . . . and
deserving of a more severe sentence." [Fn. 49] Yet the court of
appeals disapproved of the trial court's fifty-five year sentence
by saying "we have approved composite terms of forty years or
more only for violent crimes committed by offenders with
backgrounds that included habitual criminality or repeated acts
of criminal violence." [Fn. 50]
This is the kind of formulaic "benchmark" sentencing
that we rejected in Wentz. It is out of step with both Wentz and
Williams II; by pronouncing "no more than forty years," the court
of appeals has overlooked our discussion of this subject in
Wentz, (a case which is not mentioned in the Hodari decision),
and the "historical starting point" language of Williams II.
More, the decision of the court of appeals ignores a trio of
cases, two decided since Williams II, in which the court of
appeals itself upheld sentences substantially in excess of forty
years in similar circumstances: Adams v. State, [Fn. 51] Ross v.
State, [Fn. 52] and Schuenemann v. State. [Fn. 53] Finally, the
holding of the court of appeals pays little or no deference to
the statutory range of permissible sentences. The maximum
sentence Hodari could have received under the relevant statutes
was ninety years and his composite presumptive sentence, if
entirely consecutive sentences were applied, with no aggravating
factors, was forty-four years. And yet, the court of appeals
held that even with all of the aggravating factors present
Hodari's composite sentence should be four years less than his
potential presumptive one. A review of the superior court's
approach shows why that court's decision was not clearly
mistaken.
4. Judge Andrews was not clearly mistaken in
sentencing Hodari to a composite sentence of fifty-
five years.
Using prior cases as a starting point, Judge Andrews
extensively compared Williams's crimes to Hodari's. As noted
above, she found that Hodari's case was significantly more
aggravated than Williams's. Judge Andrews then went on to
compare Hodari to the defendant in Schuenemann v. State. [Fn. 54]
In that case the court of appeals upheld a composite sentence of
sixty-nine years for a second felony offender convicted of five
counts of first degree sexual assault, two counts of first degree
attempted sexual assault, and three counts of first degree
burglary. Judge Andrews found that Hodari's case was not as
aggravated as Schuenemann's because Schuenemann had more counts
of sexual assault and had spent "significantly more time in
prison" than had Hodari. Based on this analysis Judge Andrews
concluded that she was authorized to sentence Hodari to more than
thirty years in prison but should impose a sentence less than
sixty-nine.
We next look to Ross and Adams, in which composite
sentences for rape/kidnap offenders in excess of forty years were
approved. In Adams the court of appeals upheld a composite
sentence of eighty years with twenty years suspended for a third-
felony defendant who was convicted of one count each of first
degree sexual assault and kidnapping. [Fn. 55] In Ross the court
of appeals upheld a composite sentence of eighty-four years for a
defendant with one prior felony. [Fn. 56] Ross had been
convicted of one count of kidnapping, five counts of first-degree
sexual assault, and one count of second-degree sexual assault.
The Ross court used the following framework:
[W]e use the Williams [I] benchmarks for
kidnap/rape cases as a mechanism to protect against the disparate
treatment of similarly situated offenders when sound reason for
disparity cannot be found. At the same time, however, we remain
mindful that sentencing benchmarks can at most serve as an
imprecise starting point for determining appropriate sentences in
individual cases. Sentencing benchmarks place no hard and fast
restrictions on the scope of the sentencing court's authority in
any given case. [Fn. 57]
The Ross court went on to modify appropriately the third
benchmark sentencing category. Where it had previously been
limited to those offenders with extensive criminal history or
whose kidnapping was prolonged in duration, Ross and Adams added
as exceptional cases those offenders without extensive criminal
histories if "the nature of [the offender's] past and present
crimes" can be used as a "telling [] indicator of an ingrained
compulsive criminal pattern." [Fn. 58]
Hodari's case easily satisfies this test, showing in
totality "an ingrained compulsive criminal pattern" in his
behaviors. Multiple factors converge in this single case to show
that Hodari is an ingrained and compulsive offender. Although he
is younger than any of the other defendants who received a
composite sentence of greater than forty years, this convergence
of factors supports the trial court's imposition of a sentence of
fifty-five years. His long criminal record -- juvenile,
misdemeanor, and felony -- combined with his inability to control
his conduct, even while on probation for felony (and other)
offenses, and even while incarcerated, suggest a compulsive
criminal disposition. [Fn. 59] In addition, his lack of any
verifiable employment and his "miserable work history" suggest a
lack of alternatives to crime. [Fn. 60] To make matters worse,
his failure to obtain drug and alcohol treatment, and his
probation revocations based on failed urinalysis tests -- that
is, his substance abuse problems -- lend further support to the
conclusion that his condition is ingrained. More importantly,
his leadership role in the crimes, the commission of multiple
acts on multiple victims, the vulnerability of the victims, and
the "most serious conduct within the category" designation of his
crimes, all point to the heightened seriousness of Hodari's role
in these events. Finally, and most importantly, the horrific
nature of his crimes shows an exceptionally malignant disposition
suggestive of an "ingrained, compulsive criminal pattern."
Hodari's case presents a truly exceptional confluence of factors,
both personal to Hodari and applicable to the circumstances of
his crime, that lead us to conclude that Judge Andrews's
sentencing decision was not clearly mistaken.
IV. CONCLUSION
The court of appeals erred in relying on the bright
line rules established in Williams I, which this court implicitly
rejected in Wentz and the court of appeals appropriately
disavowed in Williams II. Benchmarks are not to be used as
inflexible rules but rather as historically-based starting points
for analysis in individual cases. Judge Andrews appropriately
considered prior cases involving similar offenders and offenses,
and, using the Williams II benchmark as a starting point,
appropriately fashioned a sentence for Hodari. Because her
sentencing decision was not clearly mistaken, we REVERSE the
decision of the court of appeals and REMAND with instructions
that it reinstate the sentence imposed by the superior court.
FOOTNOTES
Footnote 1:
Hodari v. State, 954 P.2d 1048, 1052 (Alaska App. 1998).
Footnote 2:
See Sawyer v. State, 663 P.2d 230, 231-32 (Alaska App.
1983).
Footnote 3:
Hodari, 954 P.2d at 1050.
Footnote 4:
Id.
Footnote 5:
Id.
Footnote 6:
See AS 11.41.410.
Footnote 7:
See AS 11.41.500.
Footnote 8:
See AS 11.41.210.
Footnote 9:
954 P.2d at 1052.
Footnote 10:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Footnote 11:
See State v. Lupro, 630 P.2d 18, 21 n.9 (Alaska App. 1981).
Footnote 12:
519 P.2d at 813-14.
Footnote 13:
Id.
Footnote 14:
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997)
(citing State v. Wentz, 805 P.2d 962, 965 (Alaska 1991) (quoting
McClain v. State, 519 P.2d 811, 813 (Alaska 1974))).
Footnote 15:
805 P.2d 962 (Alaska 1991).
Footnote 16:
Id. at 965 (emphasis in original).
Footnote 17:
See AS 12.55.125(i).
Footnote 18:
See AS 12.55.125(c).
Footnote 19:
See AS 12.55.125(d).
Footnote 20:
See AS 12.55.155.
Footnote 21:
See Juneby v. State, 641 P.2d 823, 833 (Alaska 1982).
Footnote 22:
Commentary on the Alaska Revised Criminal Code, Senate
Journal Supplement No. 47 at 153, 1978 Senate Journal 1399,
quoted in Juneby v. State, 641 P.2d at 833 (emphasis in
quotation, not in original).
Footnote 23:
See AS 12.55.125(i)(3); AS 12.55.025(g), (h).
Footnote 24:
See AS 12.55.125(c)(3); AS 12.55.025(g), (h).
Footnote 25:
See AS 12.55.125(d)(1); AS 12.55.025(g), (h).
Footnote 26:
See State v. Andrews 707 P.2d 900, 909 (Alaska App. 1985),
aff'd 723 P.2d 85 (Alaska 1986) (applying AS 12.55.025(g)).
Footnote 27:
See AS 12.55.155.
Footnote 28:
The court of appeals did not take exception to any of the
aggravators found by the superior court.
Footnote 29:
See AS 12.55.155(c)(10).
Footnote 30:
See AS 12.55.155(c)(6), (9).
Footnote 31:
See AS 12.55.155(c)(3).
Footnote 32:
See AS 12.55.155(c)(1), (2), and (4).
Footnote 33:
See AS 12.55.155(c)(5).
Footnote 34:
See AS 12.55.155(c)(21).
Footnote 35:
This and the remaining factors set out here are non-
statutory aggravating circumstances deemed relevant by Judge
Andrews; along with the statutory aggravating factors they
justified imposing an exceptional sentence.
Footnote 36:
800 P.2d 955 (Alaska App. 1990) (Williams I) modified on
reconsideration, 809 P.2d 931 (Alaska App. 1991) (Williams II).
Footnote 37:
Judge Andrews recognized that Hodari was not convicted of
kidnapping, but she found that Hodari had committed a "technical
kidnapping" "in the restraint that he exercised over the victims'
movements." 954 P.2d at 1050. The court of appeals concurred
with this analysis. Id. & n.3 (citing Williams v. State, 800
P.2d 955 (Alaska App. 1990)).
Footnote 38:
800 P.2d at 959-60.
Footnote 39:
Id. at 957-58.
Footnote 40:
Id. at 957.
Footnote 41:
805 P.2d 962 (Alaska 1991).
Footnote 42:
Id. at 966.
Footnote 43:
Id.
Footnote 44:
Id.
Footnote 45:
809 P.2d at 933 (citations omitted).
Footnote 46:
805 P.2d at 967 (quoting Susanne DiPietro, The Development
of Appellate Sentencing Law in Alaska, 7 Alaska L. Rev. 265, 296
(1990)).
Footnote 47:
809 P.2d at 933.
Footnote 48:
954 P.2d at 1051.
Footnote 49:
954 P.2d at 1051-52.
Footnote 50:
Id. at 1052 (citations and internal quotation marks
omitted).
Footnote 51:
927 P.2d 751 (Alaska App. 1996).
Footnote 52:
877 P.2d 777 (Alaska App. 1994).
Footnote 53:
781 P.2d 1005 (Alaska App. 1989).
Footnote 54:
Id.
Footnote 55:
927 P.2d at 759-61.
Footnote 56:
877 P.2d at 781-83.
Footnote 57:
Id. at 780 (emphasis added, citations omitted).
Footnote 58:
Id. at 782.
Footnote 59:
We stress that a sentencing court, and a reviewing court,
must consider the totality of all factors which bear on the final
determination of whether a defendant exhibits "an ingrained
compulsive criminal pattern."
Footnote 60:
See note 59.
